NEWSLETTER ON PHILOSOPHY AND LAW · 2018. 4. 1. · Theodore Benditt, Editor Fall 2005 Volume 05, Number 1 APA NEWSLETTER ON Philosophy and Law FROM THE EDITOR Theodore Benditt University

Volume 05, Number 1 Fall 2005

APA Newsletters

© 2005 by The American Philosophical Association ISSN: 1067-9464

NEWSLETTER ON PHILOSOPHY AND LAW

FROM THE EDITOR, THEODORE BENDITT

FROM THE GUEST EDITOR, SAMUEL GOROVITZ

ARTICLES

COURTNEY COX

“Only Time Can Tell: Unethical Research and the Passage of Time”

MICHAEL K. GOTTLEIB

“Singleton v. Norris: Precursor to Abu Ghraib? The Importance ofRole Integrity in Medicine”

J. ANDREW WEST

“Defining the Limits of Conscientious Objection in Health Care”

RECENT ARTICLES OF INTEREST – ABSTRACTS

Scott C. Idleman: “The Concealment of Religious Values in Judicial Decisionmaking”

Lior Jacob Strahilevitz: “The Right to Destroy”

Gerald Dworkin: “Moral Paternalism”

Judith Resnik: “Jurocracy and Distrust: Reconsidering the Federal Judicial AppointmentsProcess: Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure”

Benjamin C. Zipursky: “Theories of Taking the ConstitutionSeriously Outside the Courts: Tempering Supremacy”

RECENT BOOKS OF INTEREST

Theodore Benditt, Editor Fall 2005 Volume 05, Number 1

APA NEWSLETTER ON

Philosophy and Law

FROM THE EDITOR

Theodore BendittUniversity of Alabama at Birmingham

The topic for this issue of the Newsletter is Ethics, Health Policy,and Law, with Professor Samuel Gorovitz of the Departmentof Philosophy at Syracuse University serving as guest editor.

This is the last issue I will be editing. I have enjoyed myterm as editor and want to thank everyone who worked onthe Newsletter, including contributors, the APA PublicationsOffice, and the members of the APA Committee on Philosophyand Law. I also want to welcome the new editor, ProfessorJohn Arthur of Binghamton University of the State Universityof New York. Professor Steven Scalet, also at Binghamton, willserve with John as co-editor.

Future Issues of the NewsletterTopics and editors for upcoming issues of the Newsletter are:

Spring 2006 – LEGAL POSITIVISMSubmission Deadline: January 9, 2006Editor: Kenneth Einar HimmaDepartment of PhilosophySeattle Pacific University3307 Third Avenue West, Suite 209Seattle, WA [email protected]

Fall 2006 – OPEN ISSUESubmission Deadline: June 15, 2006Editor: John ArthurProfessor of PhilosophyDirector, Program in Philosophy, Politics and LawBinghamton UniversityBinghamton, NY [email protected] on any topic related to Philosophy and Law will beconsidered.

FROM THE GUEST EDITOR

Ethics, Healthy Policy, and Law

Samuel GorovitzFounding Director, Renée Crown University HonorsProgram; Professor of Philosophy, The College of Artsand Sciences, Syracuse University

The law—as one among many public sector instruments thatinfluence choices about health-related matters—powerfullyaffects peoples’ lives. We have seen in the recent case of TerriSchiavo how a complex interplay of law, medicine, politics,religion, emotion, opportunism, misunderstanding, andduplicity commanded center stage as this multiply tragic caselurched toward its bitterly contested conclusion. In this sorrysaga, it was vividly clear both that the relevant laws werecrucially important and also that many other factors beyondthe laws were also crucial to the case. Part of the disputeconcerned the legitimacy of case-specific legislation in thecontext of a complicated battle over who should get to decidewhat about whom.

Questions at the intersection of law, ethics, and healthpolicy occupy a domain within which jurisdiction is typicallycontested. One may ask what the law is or what it ought to beabout a specific kind of controversial decision, but in thebackground there is typically the logically prior question ofwhether and why such decisions should be thought of as amatter of law in the first place. In Quinlan, the court famouslyfound that the decision about the patient’s treatment was notthe court’s business. In Schiavo, the court found that thedecision about the patient’s treatment was not the legislature’sbusiness. In Werneke, on June 16 of this year, Texas JuvenileCourt Judge Carl Lewis ruled that the medical care of twelve-year-old Katie Werneke was no longer her parents’ business.

Each of the three essays that follow explores a questionto which the law is relevant but about which one must alsoask who should get to decide what. The first, by CourtneyCox, begins with the observation that there has beenconsiderable controversy about the ethical permissibility ofusing data obtained by Nazi researchers in evil experiments onhuman subjects. Yet there is no controversy about using dataobtained in evil experiments done in earlier times. Cox askshow the passage of time shapes our judgments about what isethically permissible and then explores how her conclusionscan be reflected in policies that can inform choices that remainfor us to make as we seek to balance the claims of those whostand to benefit from the use of ill-gotten research resultswith the rights of those with a legitimate claim against the useof that information.

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The second essay, by Michael Gottleib, considers the roleof physicians in treating the mental illness of death row inmateswhose executions are prevented only by that mental illness.His analysis of Singleton v. Norris has a broader goal, however:he argues in the end for legal protection of the integrity ofroles, claiming that offenses such as those in Abu Ghraib aremade more likely by inadequate attention to the conflictinherent when a professional occupies multiple roles.

The final essay, by J. Andrew West, focuses on a specificcurrent question and considers it in light of actual and pendinglegislation in several states. Most people agree that a nursewho is opposed on moral grounds to abortion ought not berequired to participate in performing one. Instead, a“conscience clause” would typically allow that nurse to beheld safe, without penalty, from participating in it. But if thatnurse steadfastly objected on grounds of conscience to, say,the use of bandages or to the administration of medications,most people would agree that this noncompliance would begrounds for termination of employment. So the questionarises: Who should be allowed to decline, on grounds ofconscience, from what kinds of actions that might otherwisebe assigned as a professional responsibility? West examinesthe legal and ethical dimensions of this question and proposesmodel legislation that he argues avoids the deficiencies oflegislation already enacted in several states.

Each of these essays began as a paper written for a seminaron Ethics, Health Policy, and Law taught in the fall term, 2004,under the auspices of Yale’s Interdisciplinary Bioethics Center.Each has since been revised for this APA Newsletter. CourtneyCox is a senior in the Ethics, Politics, & Economics program atYale, where she is also completing a degree in ElectricalEngineering. Michael Gottlieb is in his third year at Yale LawSchool; he has master’s degrees in linguistics, in psychology,and in public health. J. Andrew West is a first-year student atDuke Law School; he received a master’s degree in ethicsfrom the Yale Divinity School this year. It has been a privilegeto work with them.

ARTICLES

Only Time Can Tell: Unethical Research andthe Passage of Time

Courtney Cox

OverviewExperimentation on human subjects is, unfortunately,necessary for medical advancement. Given the risksassociated with human experimentation and the importanceof treating people as ends in themselves and not mere means,1

certain ethical standards must be met. What happens, however,when ethical standards are violated or ignored? In some cases,the resulting data sets have been of great importance to theadvancement of medical science—and the lives of many. Oncethe information has been obtained, is its use another violationof the victim—or may the data set be considered separatefrom the way in which it was discovered? Should the unethicalmeans by which the data sets were acquired preclude theirfuture use for the benefit of humanity?

Regardless of the answer to that question, unethicallyacquired data have been and continue to be used. In fact,

much of what is known today about medicine was learnedover the centuries through experimentation on slaves, poorercommunities, and stolen cadavers.2 The entire field of moderngynecology is based largely on discoveries made by Dr. J. MarionSims during his experiments on slaves and poor Irishcommunities in the mid-nineteenth century.3 Around thesame time, body-snatching was becoming commonplace asdoctors scrambled to find cadavers for experimentation: CharlieGrant, a former slave, recalled for a WPA interviewer that hehad once dug up the body of a recently deceased two-year-old in return for two dollars.4 While the use of “unethicaldata”5 is hotly contested in the case of more recentexperiments, such as the Nazi data or some of the HIV dataacquired from disadvantaged communities, it is barelyquestioned in temporally distant cases. Why is this?

To answer this question, I will employ the idea of a “moralclaim.” The word “claim” signifies the existence of a moralright. The claim may be for or against a certain action, object,or treatment. For example, from a Kantian perspective,humans have intrinsic value and, as such, are to be treated asends in themselves, never means only. Using the idea of aclaim, this means that a person has a claim to being treated asan end in him/herself, or a claim against being treated as meremeans. In other words, they have a right to be treated in thismanner. If there exists a moral obligation on X’s part to help Y,then Y has a claim to X’s help. Claims may be divided into twogroups: active claims and inactive claims. Active claims arefully tied to the time in which they exist: the individual makingthe claim must be alive and the object6 of his or her claimmust exist at that time. Inactive claims are somehow temporallydistant from either the claimer or the claimed object. Forexample, an active claim against a violation becomes inactiveonce the violation has occurred and no longer has the possibilityof recurring. When ethical questions arise, it is usually as aresult of two or more claims coming into conflict. Their weightsmust then be compared in order to arrive at a decision.

Prima facie, the question of whether to use unethicaldata appears to be one of utility. However, it is not necessarilya question of maximizing the good but of how best to balanceconflicting moral obligations. In this case, there are essentiallytwo types of competing claims: the claim of those in needand the claim of those violated. The claim of those in need isa claim to information. After needed information has beenlearned, there usually follows an obligation to use it under theprinciple of beneficence. Barring reasons against using theinformation (such as the data being unethical), if one knewhow to cure a child’s illness, one should help. This claim toexisting, needed information, is called the “Need Claim.” TheNeed Claim also extends to unethical data insofar as it exists asinformation. This claim is active—that is, in effect—until theneed is met or disappears.

The second type of claim is the traditional one—the claimof those violated by the unethical experiment. This claim maybe divided into two separate claims: the “Experiment Claim”and the “Use Claim.” The Experiment Claim is a claim againstbeing used as mere means by an unethical experiment. Thoughit is a fundamental one, never justifiably violated, once it hasbeen violated, the information exists. The Experiment Claimthus moves from being active to inactive and, as a result,decreases. There remains, however, an additional concern asto the harm that might be inflicted on the victims by use of thedata. Subjects of human experimentation must consent toboth data collection and data usage. This claim to decidingthe data’s use is the Use Claim, which applies after the datahave been collected. However, given that the data have alreadybeen collected, this additional harm is small in comparison tothe initial violation.7 Indeed, the capacity to do further harm

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to the victims through the use of the data, as will be shown,seems to decrease over time. This may be what underlies thenatural inclination to allow the use of unethical data attemporally distant points from the experiment itself.

A useful starting point is to analyze the nature of virtueand vice over the course of time. According to the recursiveaccount of virtue and vice, when analyzing responses to goodand evil, an appropriate response is good and an inappropriateresponse is bad.8 This is similar to the idea of claims as weighingfor or against an action. Thus, framing the discussion in such away lends greater clarity to balancing the competing claims. Iwill show that as time passes, the value of hating the evil—theunethical experiment—decreases. Since the claim of the livingto life remains constant, there will come a point when thevalue of using the data will outweigh the value of not using it.9

This indicates that far out enough in time will come a pointwhen data usage is not only permissible but also obligatory.For most cases, this point will occur after the death of the lastvictim involved.10 Before this point, a similar comparison ofvalues relates the nature of the initial ethical problem to thesignificance of the claim of those in need. Once the conditionsof the use of unethical data have been established,instrumental concerns of deterring future creation of unethicaldata can then be addressed. Finally, I will discuss the resultinglegal implications of this framework, as well as otherinstrumental concerns.The FrameworkIn beginning the discussion of the use of unethical data, thetwo primary claims that come into conflict must be established.The first is that of the victims of the unethical experiment.Their claim—to not being used as mere means to an end—iscertainly substantial. Pure deontologists maintain thatregardless of potential utility, the claim against being used asmere means must never be violated. The debate over the useof this unethical data, however, is not a comparison of utility.Rather, there is a competing claim, a right to health—evenlife—on the part of those who would benefit from thisinformation.

How might this be established as separate from utility?First, consider a case in which a data set exists that has thepotential to save one person’s life. There are no ethicalproblems with the way in which the set was acquired, or withits intended use. This person should be saved—even if onlyfor the added utility. What if there were a situation, however,where saving this person actually caused a decrease in utility?For example, the one person that would benefit is an orphanin an extremely impoverished community. While his survivalwould not cost anyone else her life, it would further tax analready ailing group—“just another mouth to feed.”11 Thedecrease in well being that it would cause to the othermembers of the community is greater than the added wellbeing to the orphan.12 On a pure utilitarian analysis, it wouldbe better not to save the child. This cannot be right. It fails totake into account the child’s intrinsic value as a human being,placing the comfort of society above his survival; it is culpablenegligence. The child has a right to life. If information wereknown that could potentially save lives, the principle ofbeneficence dictates a moral obligation to use it.13

Hence, this is not simply a matter of deontology versusutilitarianism. Two competing claims—respect for personsversus beneficence—must be balanced. However, the analysisof the second claim—the right to the information—needs tobe taken a step further. Can a claim to the use of unethicaldata possibly be legitimate? If the data are evil, then perhapsthey are best ignored, as though they had never existed at all.This does not seem plausible. It is not the numbers that are

evil; it is the way in which they were collected. The informationexists as information. Therefore, the claim to it as informationis possible. The concern over its use then extends to the harmthat might be done apart from the initial violation.

Once the existence of these two competing claims hasbeen established, the analogy to virtue and vice over timemay be drawn. For this to be done, the base-level goods andevils, or claims, must first be considered in greater detail. Theinitial problem begins with the experiment itself. The subjects,being human, have intrinsic value. They are ends in themselves,not to be treated as mere means.14 The nature of theexperiment violates this. This is an evil occurring at time t0. Aswould be expected, valuing their claim against this particularexploitation, or, more simply put, hating this evil, has intrinsicvalue at t0.

The claim at t0 against being used as mere means by anexperiment is the “Experiment Claim.”15 As time passes, itsvalue diminishes. This can be readily shown by considering asimilar experiment taking place later at time t1. The twoexperiments are equally “bad” within their respectivetimeframes.16 If one existed at time t1, the evil taking place att1 is more proximate. As a result, the value of hating this evil ishigher than hating the one that occurred in the past at t0.Which is worse, to be indifferent to a person suffering in adistant time and place, or to a person suffering on the floor infront of you? The more proximate an evil is, the greater thevalue of responding to it becomes.17 Hence, the claim mustbe greatest when the event is occurring. Afterwards, this claimbegins to decrease. However, the value of this claim in thedistant future does not necessarily approach zero. If it did,then far enough out in time, the difference between the valueof hating this immense evil, and hating a smaller evil at thesame time, would become negligible. Instead, the value ofhating the evil approaches a lower asymptote whose height isdetermined by the height of the initial value at t0.

The question then arises, is further harm being done byusing the data? It seems that once a data set has been created,it exists on its own, separate from the subjects used to createit. The accuracy of its results depends on the accuracy of theprocedure, not the ethical status. Furthermore, to use thisdata as the basis or a component of otherwise ethically soundresearch is not to re-use the subjects involved as means. Yetthis does not mean it is permissible to use unethical data justbecause the damage has already been done. Unethical dataare certainly not on a level playing field with ethical data. Thisis because unethical data still have a claim against their use.As noted earlier, the value of hating evil, the claim againstunethical data, maintains weight even after the evil hasoccurred. Though this value decreases with time, making theuse of unethical data less bad, it is still bad. Ethical data doesnot have this claim against it. When data are available throughethical means—whether by tapping a different database orrepeating an experiment—we should use it.18

Yet, can the data really be separated from the victims insuch a way? A thought experiment may shed light on thisquestion. Dr. Graham is a psychiatrist treating a patient, John,for depression. Naturally, during the course of the therapy,John’s relationships with various people are discussed. Oneday, John’s spouse calls Dr. Graham with a concern that John ischeating on her. Having actually discussed this matter theprevious day, Dr. Graham knows this to be true. Though John’sspouse certainly has a claim to knowing this information, thereis a problem with Dr. Graham providing it: it is not his own.Though he no longer needs John to know this piece ofinformation since the purpose for him acquiring the informationwas for treatment, he cannot use it for other matters unrelatedto that treatment.19


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This idea may be extended to information acquiredthrough research. When informed consent is given toparticipate in a research experiment, the participant providesconsent on two different accounts: first, the collection of thedata, and, second, the purpose of its collection. That is, ingiving information connected to one’s person, an individualhas a claim as to how that information is used. In the case ofunethical data, this indicates that there is an active20 claimpresent after the initial violation from the experiment itself.For purposes of simplicity, this claim—to decide how data areused—will be referred to as the “Use Claim.” To write off thevictims as “emotional cripples,”21 ignoring their protests againstdata use, is not only problematic intuitively, it is a violation ofan active Use Claim.

How does this Use Claim fit in with the initial one againstthe experiment? Does it simply prevent the original claimfrom decreasing in value, or does it exist as its own separateclaim? Consider a victim who feels that the data should beused. Ferdinand Labaloue, a victim of the Nazi hypothermiaexperimentation, supports the use of the data even if he is notto benefit from the results: “…I feel that if the data gainedfrom experiments on me have been used to help others, Iwould never have prevented that.”22 He is giving his consentto the data being used when there is a need. What effectshould this have on the Use Claim? It can no longer be againstusing the data because he is not against data use. Instead, itbecomes a positive claim in favor of using the data when thereis a need.23 If the Use Claim was considered as part of theoriginal claim, causing it to remain active instead of becominginactive, then if the victims agreed to allow data use, there isno longer anything to separate the value of using unethicaldata from using ethical data.

What happens if the claims are separated? The two aresummed. Yet, the Use Claim, which applies directly to the useof the data, can only be applied once the data is in existence,that is, for some time t > t0. This would then imply that thesum of the two claims—the Total Claim—is greater at t > t0than it is at t = t0; the victims have a greater claim against thedata (its use and existence) after it has been collected thanwhile it is being collected. This is hardly plausible. Certainly,the greatest grievance occurs at t0—the claim against beinginvolved in an unethical experiment. This is the most directuse of the person as a means. One solution is if the value ofthe Experiment Claim, or the original claim, is defined to beinfinite. If this is the case, then the Use Claim is negligible incomparison until the Experiment Claim has decreased to finitevalue. This seems attractive intuitively and, as will be shown,is correct.

Given that the total claim against the data (both itsexistence and use) continues indefinitely, what makes itacceptable to use the data? There exists a competing claimfrom those who would benefit from the use of the information.As noted, if information is available to help those in need, theyhave a claim to it. Whether this claim outweighs other claimsagainst the use of the data is a separate question. The strengthof their claim to use the data is inherently linked to the size24

of their need. That is, the greater their need, the greater theirclaim. The claim would certainly be bigger when a life is atstake than when one is not. The nature of this claim for use,however, is continuous25 over the time when the person needsthe information. This makes intuitive sense. If there is a need,it exists until it is satisfied or disappears. Unlike the Use andExperiment Claims, this claim, the “Need Claim,” ceases toexist upon death. This is because the information can no longerhelp a person who is dead; the need has ceased to exist. Insuch a way, there is a continuous value to the desire to bringabout this aid, a value to the love of the good.

The claim to use information only applies to unethicaldata when other avenues are unavailable. If untainted dataare available, yet tainted data are used, this is ignoring thenegative claim that lingers from the way in which it wasacquired. Using unethical data when other means are availableis thereby further promoting the bad, and constitutes a bad initself since, of two options, the worse was chosen.

Once it has been established that no other avenue isfeasibly available, the two competing values must becompared. The total weight of the claims for using the data isbalanced against the total weight of the claims against usingthe data for each moment in time.26 That is, the data may onlybe used when the value of using the data exceeds the value ofnot using the data. In fact, not only is the data use allowed, itis then required.

But consider this objection: Could the claim of the peoplein need ever outweigh the claim of the research subjectsagainst being used as mere means? If the claim of a personagainst being used in unethical research is finite, then a numberof claims to the researched information could sum to begreater than the Experiment Claim. This, however, is not anaccurate interpretation. The claim of people to informationcould never outweigh the claim against being used in theresearch at t0 because the information does not yet exist; aNeed Claim cannot exist if the needed information does notexist.

Something else, however, exists in its place: a claim to thepursuit of information. Consider a person suffering from anunknown illness. To help him, he must first be diagnosed. Adoctor with the capacity to do this certainly has an obligationto help him by trying to discover what it is he is suffering from.Or, for example, if a crime occurs, the police have a duty to getto the bottom of it—to find the thief, the murderer. In such away, those in need have a claim to the pursuit of information.It is this claim, the “Research Claim,” that must outweigh theExperiment Claim.

As a result, the same problem that existed before arises:What if the research required only one human subject, butten, 100, 1,000, one billion people had a claim to it?27 Wouldnot the sum of the claim for information be far greater thanthe claim of the one person against being used as a means insuch a way? This is a disturbing thought. The answer must beno. The claim against being used as a mere means is afundamental one that must be adhered to.

Yet, what if the research only required withholding a smallamount of information from only one human subject? This isunethical, but if the risk to the subject was negligible, and itwould save the lives of millions of people, the decision is nolonger as clear. Is the size of the claim against a violationproportional to the nature of the violation? That is, if a violationis less unethical, is the claim against it weaker? The inversemay be easier to answer: If a violation is more unethical, is theclaim against it stronger? Intuitively, the answer is yes, and, aswill be discussed, it affects the nature of the Use Claim. Inmost cases, however, the initial ethical violation caused by theexperiment is not negligible: regardless of how large the claimto information is, it cannot trump the individual’s right to hisown person, his claim against such experimentation. In mostcases, it is a barrier that cannot be overcome. Therefore, forpurposes of simplicity, the value of this claim against theunethical experimentation will be considered as beinginfinite.28

This is consistent with the conclusion reached earlier. Itsolves the problem created by a summation of the ExperimentClaim and the Use Claim, the “Total Claim,” being greater thanthe active Experiment Claim. Yet, if the fundamental principle


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to be followed is not to use people as means, why is the UseClaim assumed to be less than the Experiment Claim? This,indeed, appears problematic. Since the Use Claim stems fromthe idea that when a person must give consent on twoaccounts—the data’s collection as well as its use—it seemsthat a violation of the Use Claim is a violation of their autonomyand is therefore to use them as mere means.

Why, then, was it assumed that the two claims had differentweight? A thought experiment may shed some light. Imaginea situation in which there are only two choices29: to useunethical data or to unethically research new data at a giventime t1. (The unethical data already in existence wasunethically acquired at time t0.) The victims of the firstexperiment are opposed to the data’s use. The would-bevictims of the second will not be opposed to the data useonce the data have been collected, although they are certainlyopposed to the initial experimentation. Which is the lesser oftwo evils? If both the Use Claim and the Experiment Claimhave the same value, the two choices are equally bad. This ishardly plausible—how can subjecting a new group of peopleto the initial violation not be worse than using unethical dataalready in existence? The claim of those againstexperimentation must be greater than the claim of thoseagainst the use of already-acquired unethical data.

The reason for this is that the experimentation is to use aperson more fully as a means. The use of data does this to alesser degree. While it violates the principle of respect forpersons,30 it is still a use of information. Even though thepeople from whom the information was acquired should havea voice in deciding its use, to ignore their claim is not so muchto use them directly as it is a violation of respect. This differsfrom unethical experimentation, which cannot in any way beseparated from the person whom it is violating. This being thecase, the Experiment Claim—when active—is of infinite value,while the Use Claim is always finite.

What does this imply for how the weights change overtime? How soon after t0 does the Experiment Claim fall backto finite proportions? What is the shape of the Use Claim, andhow should its initial value be determined?

First, consider the Experiment Claim. To determine therate at which the weight of this claim decreases, assume theUse Claim is neutral—that is, the victims of the experimentare indifferent to data use. Continuing the analogy to thevalue of virtue and vice over time, if a given virtue or vice hadvalue at t0, the decrease in its value is negligible at t0+, anextremely small amount of time after t0. For example, hatingthe suffering caused by the Holocaust has the greatest valueat t0, while the suffering is occurring. However, the differencesbetween hating the suffering a day, two days, three days—inthe case of the Holocaust, even years and decades—after ithas ended are negligible.

Does this slow decline in value hold for the ExperimentClaim? Though appealing to think so, note this differencebetween the Experiment Claim and the value of the vicediscussed: the value of the Experiment Claim is the value ofthe claim against the evil, a base-level good; the value of hatingthe Holocaust is just that—the value of hating the evil, a virtue,but not a base-level good. Though the latter has immensevalue, it may never approach the value of the evil itself, asexplained under the recursive account of virtue and vice.31

The value of hating the evil is finite; it will always be finite.The weight of the Experiment Claim, however, is infinite whenthat claim is active. Hence, an extremely small decrease in itsvalue for short time intervals after t0 will result in a value thatis still infinite.

Why is this problematic? What needs to be determinedin the case of the Experiment Claim is at what point the claimreturns to a finite value. Until this point, there is no situationwhere it could ever be justifiable to use the data—regardlessof the lack of a Use Claim and the immense size of the NeedClaim to the information. Once it becomes finite, a largeenough Need Claim could justify the use of the data. This isnot to say that it would be permissible to use the data in allsituations where a Need Claim existed but, rather, that thepossibility would exist for the use of the data to be justifiablein some situations. Hence, in determining how the weight ofthe Experiment Claim changes, the first question is: How muchtime must pass after the data have been collected until therecould be a situation where its use is justifiable?

Setting instrumental concerns of deterrence aside for themoment, it seems that such a situation could arise almostimmediately. If an unethical experiment, performed on adisadvantaged population in Africa, actually discovered thecure to AIDS, how long must the world wait to be able to usethe cure? Currently, 36.1 million people are infected with HIV/AIDS. There are 5.3 million new infections per year, or 15,000per day, and 1,700 of these daily infections are in childrenunder the age of fifteen. The disease has already killed 21.8million people.32 Given the extent and severity of the disease,the claim is immense. Once an unethical experiment hasbeen performed and a cure is in existence, the size of theclaim is such that to withhold the cure would be wrong. Further,since for the purposes of the current discussion the Use Claimhas been considered neutral, or even in favor of data use, theclaim against the initial existence of the data should notoutweigh the Need Claim. Similar cases could be drawnexperimenting with the severity of the need and the severityof the experiment’s ethical violation. It appears that theExperiment Claim must almost immediately return to finite,albeit still immense, proportions.

How can this be achieved? The only solution thatmaintains continuity is a curve that is initially extremely steepbefore leveling out to a lower asymptote. The problem withthis, however, is that once the curve has reached finiteproportions, it very quickly approaches its asymptote. If this isto be the case, then there are great differences in the weightof the claim for small time intervals very early on, but littledifference in the weight between times shortly thereafter andtimes far in the future. This does not seem plausible. TheExperiment Claim should be significantly greater close to thebreach than far in the distant future. As a result, the ExperimentClaim has a discontinuity at t0, when it moves from an activeto an inactive claim. The decrease will be similar to the onedescribed above, allowing for negligible difference in theweight of the claim over short time intervals early on, whilebottoming out to an asymptote. The initial weight of this claimafter the discontinuity at t0+ is given by the degree of theethical breach. In other words, the more unethical anexperiment was, the greater a claim should exist against theuse of its data.33 In such a way, it parallels the analogy to virtueand vice over time as presented above.

When considering the Use Claim, another relational issueoccurs: How should it compare to the claim against the data’sexistence for time t > t0? Recall the problem with includingthe Use Claim within the Experiment Claim: if a victim had noproblem with data use, or even wanted the data to be used,this would erase the claim against the use of unethical data,placing it on even footing with the use of ethical data. Oncethey have been separated, however, should this still be aconcern?


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It turns out that actually the reverse is true. Since theTotal Claim against the data has been separated into two claims,the Experiment and the Use Claims, this would no longer be aconcern. Even if the three claims—the Experiment, the Use,and the Need Claims—summed in favor of using the data attime t*, the value of using this data is still less than that of usingethical data.34 The danger of giving unethical data use andethical data use the same value having been avoided, the caseshould be reconsidered. If a victim of unethicalexperimentation, like Ferdinand Labaloue,35 wanted the datato be used when the need was great enough, why should itnot be, provided that ethical data alternatives36 are unavailable?At the end of the day, the victims must be respected. Toignore their desire to have the data used because the value ofhating the data’s existence is greater would be to commit thesame folly as using the data against their wishes: it disregardsthe value of the victims’ opinions. Therefore, when it is activeover t > t0, the Use Claim must be greater than the ExperimentClaim.

While determining the exact magnitude of the Use Claimis beyond the scope of this paper, it has some interestingproperties. First, it is the same for each individual, regardlessof how they were experimented upon. This is because theUse Claim is a claim to consent or control information use, nota claim against the existence of the data itself. Any variation inthe Total Claim against the data use is caused by theExperiment Claim.37 Second, the Use Claim is active over thelifetime of the victim. As a result, its weight is also constant(though its direction, for or against data use, may change).Indeed, the distance from the time the information was given,if subjects are still alive, should not affect their right to controlthe information. Third, this claim becomes inactive uponwhichever comes last, their death or their expected death—at the end of their projected life expectancy. The reason forthe transition being located at the later of these two events isto protect against any difference in weights against using thedata if the victim dies as a result of the experiment. That is,the Use Claim is active not just over their actual lifespan butover what it would have been. One cannot decrease the valueof the evil of experimentation by doing greater evil, causingthe subject to die. This is essentially parallel to the inactivityof the Experiment Claim—the claim becomes inactive whenthere is no longer any possibility of it being asserted, with thesafeguard being the only substantial difference. However, thisdoes not imply that the Use Claim drops immediately to zero.Instead, there is a gradual decrease over time. When a persondies, it does not give a carte blanche to disregard their wishes.The desire of surviving family members to uphold a deceasedloved one’s requests demonstrates this.38 Indeed, there issomething troubling about waiting for the moment someonedies to do what one wants.

A final point39 with regard to the Use Claim must beconsidered: Where does the decrease in value bottom out? Ifit were to decrease in value indefinitely, this would causepositive Use Claims eventually to become negative and viceversa. This is not plausible. The Use Claim may never changesign once it has become inactive because the victim is nolonger present to change its direction. However, the Use Claimdoes approach zero. The more time that passes, the weakerthe claim becomes—the living must have a greater claim thanthe dead to life-sustaining information. This is not to say,however, that the claim ever becomes zero but approaches it.The difference between the two is negligible but still present.

The framework has now been laid out. Three claims—the Experiment Claim, the Use Claim, and the Need Claim—must be balanced in deciding when, if ever, unethical datamay be used once it has been collected. Of the three, the Use

Claim is the most powerful, possessing the ability to essentiallydouble the claim against data use, or to tip the scales in favorof it. As a result of the way in which the Experiment Claim andthe Use Claim decrease over time, the data becomes moreavailable to needs of decreasing severity. This increase inavailability becomes much quicker once the victims of theexperiment (would) have died. To determine data use at anygiven moment, the vectors of the various claims are summed.Though the claim against the data never disappears entirely,time causes the scales to tip in favor of data use. Eventually, apoint will be reached when the data must be used in mostcases for which ethical data is unavailable. However, oncethis framework has been established, what can be done withit?The Real WorldThe use of unethical data is nearly always controversial in theshort term. Dr. J. Marion Sims, often referred to as the “fatherof gynecology,” was criticized by a number of his peers for hisexperimentation on slaves and, later, poor Irish communitiesin New York.40 However, little more than 100 years later, fewgive notice to the fact that modern gynecology is based largelyon this unethically acquired data.41 In fact, much of modernmedicine was developed through the use of this and othertypes of unethical data.42 The framework presented aboveoffers a plausible explanation for this phenomenon. To movefrom the theoretical to the useful, however: To whom wouldit matter behaviorally if this theory is right?

One of the groups that the framework may affectbehaviorally is journal editors. Journal editors must makepublication decisions based upon a piece of research’sscientific validity and ethical status. According to theCommittee on Publication Ethics’s “Guidelines on GoodPublication Practice”:

(7) Formal and documented ethical approval from anappropriately constituted research ethics committeeis required for all studies involving people, medicalrecords, and anonymised human tissues. (8) Use ofhuman tissues in research should conform to thehighest ethical standards….43

Failure to live up to these standards may amount tomisconduct.44 Under these guidelines, at least, the publicationof unethical data is not approved.

If the framework is correct, there may be room for revision.Journal editors would be able to publish unethical data after acertain amount of time had passed, provided there was a needfor which ethical data was unavailable.45 How long should thistime be? This number is difficult to pinpoint. It would be atthe discretion of the individual journal to decide whether theywanted to create a general policy or decide on a case-by-casebasis. Public Knowledge laws may provide some guidance.Pharmaceutical patents last only 11.7 years,46 while regularpatents expire after twenty.47 In some states, birth and deathrecords enter the public domain after fifty years have passedfollowing the individual’s death.48 Copyright for writing andmusic expires seventy years after the death of the artist.49 Inthe case of the pharmaceutical patents, the Need Claim ishigh. Without an Experiment Claim to balance against, theUse Claim would quickly be trumped. In the case of musiccopyrights, the Need Claim is low, hence, the Use Claim trumpsfor a greater period of time. While this cannot be a directcomparison, it does shed some light on approximate timeintervals. For the use of unethical data, the Experiment Claimand the Need Claim vary on a case-by-case basis. Given this,it might be better to make the decisions in a similar case-by-case fashion, with the general wait period being roughly thirty


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to forty years after the death of the last victim.50 Similarapplications may also be useful to policy makers in determiningthe funding of scientific projects. For example, if a projectrelies upon unethical data, it must wait the required time beforereceiving federal funding.

The use of the framework to allow data use after a givenperiod of time, however, raises an interesting question: Whatshould be done about deterrence? One leading argumentagainst using unethically acquired data is that not using it createsa disincentive to pursue new unethical experiments whenthe ethical route becomes too costly (whether monetarily orotherwise).51 However, if the claims weigh in favor of the datause, not to use the data is wrong. The Need Claim is substantialenough that the data must be used; the victims themselvesmay even want the data to be used. Not to use it on thepremise that an example must be made of the unethicalscientist, on the grounds of preventing future crimes andpreserving research integrity, seems wrong. In a way, it is onceagain giving control to those who perform unethical research,even if it is not what they would choose. Deterrence, aninstrumental concern, should be achieved through othermeans.

This is where the policy-makers—legislators, lobbyists,other bureaucrats—must come in. While they can use theframework to help steer funding, this use of their power islimited in the same way as that of journal editors. However,they do have the power to deter scientists from performingunethical research by means unrelated to the data’s use:punishment. For the truly one-minded, science-orientedscientist, this may not be enough of a deterrent; as long as heis making a discovery that is of use, he is content. Yet, formany, punishment in terms of fines or jail sentences may bean effective deterrent. Shame may also play a role: scientistswho have performed unethical experiments could be judgedineligible to present work at professional meetings.52 Anybenefits accrued from discoveries, monetary or otherwise,could be confiscated. While funding should not be taken fromthe scientist ethically relying on the unethical data, it couldand should be taken from the scientist who performed theunethical experiment in the first place.

This framework also has another problem when appliedto the real world: determining the status of the Use Claim.This is the case with any framework that employs a similarnotion. Victimization through crime causes trauma. Theliterature regarding trauma victims indicates a need for controlas an essential part of the recovery process.53 Indeed, as Quinnnotes: “[…] supporters of the data’s use fail to understand thatwe continue to harm the victims by not giving them controlover the use of the data.”54 She takes this idea a step further,noting: “We should not say what it means for the victims to bein control, for to do so is paternalistic.”55 The excuse that itmay result in dissenting opinions is not valid; the victims muststill be given control.56 However, Quinn does not explain orsuggest how this might be done.57

The theoretical framework presented here also takes thevictim’s claim into consideration: through the ability of theUse Claim to outweigh the Experiment Claim, the victim hasthe ability to cast a powerful vote for or against the data’s use.This, too, fails, however, because it is never suggested howthe victim’s opinion might be obtained.

While many other issues may be bracketed for futurediscussion,58 this one may not. The reality is that there maynot be a way to give victims complete control. It has nothing todo with writing them off as “emotional cripples” or consideringtheir view to be biased in such a way that they could not makethe decision.59 The theoretical framework takes a step in the

right direction by offering a straightforward way of analyzingtheir opinions. The victims’ claim to control the use of thedata is the same in all cases; they simply need to decide whetherthis value is for, against, or indifferent to the data’s use in aparticular situation. Yet, determining even this much proveschallenging.

Prima facie, the obvious choice would be to contact thevictims, but this is problematic. Some may not want to becontacted. “Many victims will have particular triggers thatremind them of their victimization, such as sights, smells,noises, birthdays, holidays, or the anniversary of the crime.”60

Especially in cases of those who suffer from “long-term crisisreactions,” these kinds of triggers can cause them to have arelapse of the initial crisis reaction.61 Asking for consent to useunethical data raises the issue yet again. For some, this couldbe medically problematic. Others may simply not want todeal with it, having moved on with their lives. In other cases,the victims may be unaware of their participation and leading“normal” lives. Informing them is to make them aware of howthey were victimized, possibly inflicting trauma. Directlyapproaching the victims is not an option.

One solution would be to open the forum to discussion.Victims would be encouraged to come forth and discuss butnot forced. Sufficient care would need to be taken to ensurethat they would not be re-victimized by the process. Whilethe details of how to do this are beyond the scope of thiswork,62 the key is to listen to the victim. If they say they do notwant the data used, that is their answer. They are not to beinterrogated or made to feel guilty for their opposition to datause. One of the difficulties with this solution is the need topublicize so that the victims are aware of the discussion takingplace, without being obtrusive. Media attention on the peopleinvolved in the study itself must be curtailed.63 To a certainextent, unfortunately, this is unavoidable.

What should be done in cases where the victims do notexpress their opinion, or there is no way to reach the victims—to even know who they are? The Use Claim is determined bywhether the victim wants the data to be used or not; that is,whether or not the victim consents to the data use. This beingthe case, not voicing an opinion is not to grant consent. Hence,unless instructed otherwise, the Use Claim should alwayscount against the use of the data. In high-stake cases, stickingto this may prove difficult. If the Need Claim is so great thatthe difference between using the data and not using the dataturns on one individual’s Use Claim, making a decision byassuming the unknown Use Claim to be negative is difficult.In these situations, decisions should be made on a more case-by-case basis, perhaps in consultation with an Ethical Reviewboard.ConclusionThe framework laid out here attempts to reconcile thevariations in opinion toward the use of unethical data withrespect to time. By relying on the idea of a “claim,” a right onthe part of the individual asserting it, or, alternatively, a moralobligation on the part of those in control of resources orinformation, the weight of the claim is set into motion as adecreasing function over time. After establishing the existenceof competing claims—here, the Experiment, the Use, and theNeed Claims—the way in which to resolve them is discussed.The result is that as time passes the claim existing against theuse of the unethical data decreases, while the claim in favor ofits use remains positive. Thus, there will arrive a point, after agiven time interval, during which data use becomes not onlyjustifiable but mandatory. This point, as has been shown,typically occurs sometime after the last victim has died. Theframework also has real-world applications in addition to the


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theoretical ones. It may be of particular use to journal editorsin making publication decisions with regard to the ethical statusof an article. More interestingly, it sheds light on the need fora separation between instrumental concerns and claims whendetermining data use: deterrence should be achieved througha means that does not affect the ethical decision on the datause made with regard to the claims. For it to achieve its fullpotential, the determination of the Use Claim status, in additionto who may decide the way in which the balance occurs, mustbe worked out. These questions, however, are beyond thescope of this work. In sum, the framework appears to be aplausible explanation with strong possibilities for application.Will it work? Only time will tell.

Endnotes1. Kant, 95.2. O’Leary, 427; Cotton, 54-55, 57-63.3. O’Leary, 427; Sartin, 500, 504.4. Cotton, 55.5. For purposes of simplicity, from this point forth,

“unethical data” will be used to refer to data acquiredthrough unethical experimentation on humans. Thereason why the data are unethical, or how the ethicalstatus of data might be determined, are separatequestions not discussed in this paper.

6. The object of their claim may be an actual “object”—a thing—such as information or medicine. In othercases, it may be a claim for or against an action, inwhich case the possibility of the action or the potentialfor the action to occur must exist.

7. This is not to discount its value. However, there existsa large gap between the amount of harm done by thedata collection and the amount of harm done by itsuse, which extends from the fact that the initialviolation is of infinite proportions, as will be discussed.

8. Another way of explaining this is to establish that thereare certain base-level goods and certain base-levelevils. Loving the goods and hating the evils isintrinsically good. The reverse response, hating thegoods and loving the evils, is intrinsically bad. Thisaccount is recursive, meaning that an attitude towardthese responses may also be thought of in this way(e.g., loving the love of a good is also a good). Afurther explanation and defense of this theory canbe found in Thomas Hurka’s Virtue, Vice, & Value.

9. This is not a matter of maximizing welfare, but amatter of the value—or weight—that should be givento different claims.

10. In determining policy, this point should be consideredas existing not after their death but after the end oftheir expected “lifetime” or life expectancy. Thiswould help prevent any unwanted ease that wouldarise in decision-making from their premature deathas a result of the experiment.

11. Source unknown.12. The decrease results from the child living, not from

the cost of treatment itself. Beyond this, the exactdetails of how this trade-off would work shall besuspended for purposes of the thought experiment.For the moment, consider the orphan’s well beingsufficiently close to the “barely worth living level”(Kagan) so as to insufficiently balance a substantialdecrease in others’ well being.

13. The caveat here is that the information is known (i.e.,is already in existence). As will be discussed, there is

no claim to unknown information. However, there isa claim to the pursuit of knowledge.

14. Kant, 95.15. The Experiment Claim applies only to the claim

against being treated as a means by the experimentat t0. It does not yet consider the effects of furtherdata use.

16. How they came to be equally bad is not important; itcould be as a result of them being identical in natureand scope, or for some other reason. The importantconsideration is that the “badness” of the t0experiment at time t0 and the “badness” of the t1experiment at time t1 are the same.

17. This is consistent with the first modal condition ofthe recursive account of virtue and vice, which states:“concern for one of these objects has less value whenthe object’s existing is a more remote possibility, orwould require greater changes in the world” (Hurka,118).

18. What of repeating extremely dangerous experiments?Sometimes the results of unethical experimentsindicate a substance to be dangerous. In thesesituations, it would be unethical to repeat theexperiment, given the knowledge that it is dangerous.This is because those being experimented on have aright against being subjected to unnecessary dangers.It is an example of a claim in favor of data use thatoutweighs the claim against it.

19. Professor Gorovitz raised an objection to this point:What if John told Dr. Graham he was going to kill hiswife—and Dr. Graham believed him? In this situation,Dr. Graham must warn the wife: her claim to lifeoutweighs John’s claim to confidentiality. However,the point being demonstrated by the thoughtexperiment above remains: suppliers of informationhave a claim to controlling its use.

20. As has been noted, two types of claims exist: activeand inactive. For example, the Experiment Claim atthe time of the experiment, t0, is an active claim.Once the unethical experiment has been performed,however, this claim has already been violated andcannot be violated again in the same way. Thus, theclaim moves from being “active” to “inactive.” TheUse Claim is active over the course of a person’s life.Even if the data were to be used, this does notpreclude the data from being used again. Hence,unlike the Experiment Claim, it remains active evenafter it has been violated.

21. Quinn, 317.22. Quinn, 324, fn. 3.23. Why does it not simply become neutral? Consider a

case where data are collected to fill a need. Oncethe data have been collected, it is useful in filling theneed. However, for some unknown reason, theresearchers decide not to use the data to alleviatethe need. This is problematic. However, if the claimis neutral (i.e., nonexistent for purposes of thequestion), there is nothing wrong with the fact thatan undue burden was placed on the research subjects(there will still be an unsatisfied claim to the datafrom those in need). Therefore, the Use Claim ispositive in favor of data’s use for the purpose intended.The fact that there is a positive claim in favor of usingthe data, however, does not necessarily mean thatthere will always be a need. The intended purpose


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for the data use must be present for the Use Claim tobe positive. Otherwise, it remains neutral. This hasstrong consequences for the use of ethically acquireddata in the use of further research for which it wasnot originally intended. As a result, policy governinginformed consent may need to require the consentto be given for “research,” thereby relinquishing theUse Claim altogether. If someone does not want todo that, then they do not participate in the study.

24. This is both in terms of the size of the individual needas well as the number of individuals who have such aneed.

25. Given the ability of time to alter circumstances, thiswould not necessarily be true in actual application.For example, some might argue that since there is aclaim for every moment that the need exists, witheach maintaining weight as time passes, everymoment actually has more than one Need Claim. Asa result, the summation of these could imply thatthose who had waited longer to have their needsmet have a larger claim and should be given greaterpriority. Another example might be that the necessityof curing an illness or debilitating condition is greaterwhen a person is younger, since there is more at stakeand more to be gained from the procedure. In such away, the initial values of the claims would differ. Theexact nature of these claims and how they sum,however, is a question beyond the scope of this paper.For purposes of simplicity, this claim will beconsidered continuous over time until it disappearsor is met.

26. The comparison for any given moment does not takeinto account past or future claims. Any change inclaim that would result from the benefit to anindividual from the amount of future value they wouldreceive or the length they have been waiting is alreadyincluded in their claim at a given point in time. Theway in which this factors into the Need Claim isbeyond the scope of this paper, however, as noted infn. 25.

27. It is interesting that this is the place whereutilitarianism had failed.

28. Whether or not the Research Claim might trump theExperiment Claim and the way in which it would dothis are questions that require their own discussion.Fortunately, the simplification does not change theframework. As will be discussed, there is adiscontinuity at t0 when the Experiment Claimbecomes inactive. Even if the initial, activeExperiment Claim is not infinite, this break will stillallow the Total Claim to be greatest at t0.

29. For the sake of this thought experiment, the reasonwhy these two choices are the only options isirrelevant. Furthermore, one of the two must beselected; not deciding is not allowed.

30. The principle of respect for persons is one of thethree values listed in the Belmont Report on humanexperimentation research ethics (“Guide” Section 4).

31. Hurka, 129, 133.32. These statistics are as of 2000, taken from the Office

of National AIDS Policy “Summary Fact Sheet on HIV/AIDS.”

33. The exact formula for determining this height isbeyond the scope of this paper.

34. During a conversation with Professor Gorovitz, thequestion was raised: What if a victim wants the datato be used—regardless of whether ethical data isavailable—because they feel that at least theirsuffering would have done some good? It seems that,in this case, they would be denying the value of theInactive Experiment Claim. Given the broad natureof this question and its implications, it is left foranother time.

35. Quinn, 324, fn. 3.36. Whether these “ethical data alternatives” are using

an ethical data set or redoing an experiment followingethical standards is irrelevant.

37. An interesting result of this is that the range of possibleweights against data use is equal to twice the UseClaim.

38. This point was made to me during a discussion withProfessor Gorovitz.

39. This is the last point this paper will take into account,though there are certainly more to be considered.Another interesting question that could be raised iswhether the Use Claim can change back and forthbetween being for or against data use. It seems thatonce permission has been given in favor of using thedata for a particular case, it cannot be rescinded.However, this does not appear to suggest that theclaim could not recede back to neutral (i.e., movefrom being in favor of data use to being indifferent).

40. O’Leary, 427-429; Sartin, 500.41. Ibid.42. Cotton, 48, 54-55, 57-63.43. “Guidelines,” 69.44. Ibid.45. When publishing unethical data, it may be advisable

to make a special note condemning unethicalresearch procedures. However, doing so might createan incentive by demonstrating that unethical data willeventually be published. The proper course of actionis left to the journal to decide.

46. “Ten.”47. “Beginner,” 1.48. For example, in Rhode Island, birth certificates are

kept confidential for 100 years before being movedinto the public archives. Death certificates are movedinto public archives after fifty years (“Office”).

49. “Beginner,” 1.50. Thirty years seems like a reasonable estimate, given

that the Need Claim is great, as in the pharmaceuticalcase, but taking into account an added ExperimentClaim. What if the evil researcher outlives his victims,even though his victims do not die prematurely? Forexample, consider the situation in which a youngresearcher unethically experimented on elderlypeople. It was established earlier that the distancefrom the time the information was given should notaffect the subject’s right to control the information.The same would apply after the victim has died.Though it might seem preferable to raise the inactiveUse Claim for elderly victims since, otherwise, theunethical data would be used closer temporally towhen it was acquired, once a victim has died, theharm done to them by using the data is still less. Thewishes of both the elderly victim and the one whowas experimented upon in his youth should be


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respected after their deaths. Indeed, using thenumber of years after the victim’s death is consistentwith the example of copyright laws, where a workmoves into the public domain a set number of yearsafter the artist’s death instead of a set number ofyears after the work was copyrighted. Measures mightbe taken, however, to deny the evil researcher anyform of credit for the data.

51. Quinn, 317.52. This was suggested by Professor Samuel Gorovitz.53. “Alliance,” 2.54. Quinn, 322.55. Quinn, 323.56. This is ironic. For example, in some tests, trial data

might be randomized in such a way that a given pieceof information may not be traced to the source. Evenif all the victims could be contacted, how would thedetermination of the data’s use be decided? Amajority would still deny the minority their control. Itseems as though this is an unavoidable dilemma,unless each individual’s data set may be separatedfrom the group’s.

57. Quinn, 324.58. One of the other important issues that this paper does

not address is who should decide the strength of theNeed and the Experiment Claims, therebydetermining the balance either in favor or against thedata. Since the application discussed here is forjournal editors making publication decisions, they areultimately in control when deciding whether topublish the data. This is a reality. Whether it is right isa matter for another discussion.

59. Quinn, 317.60. “Alliance,” 2.61. Ibid.62. Additionally, laws outlining the treatment of rape

victims during legal proceedings may be a useful placeto begin. Though these laws are by no meanssufficient, they have made progress in thinking abouthow to protect victims while giving them a voice(Watson).

63. Media attention focusing on victims when they dospeak out can be brutal. This was the case during arape trial in Mexico City: “The shocking nature of thecase focused intense news media attention in theproblem of rape in Mexico. But that same attentionadded to the victims’ trauma. The three girls haveshunned their therapy [which resulted from the case]and are virtually in hiding, maintaining almost nocontact even with those who helped them” (Watson).

Works Cited“Alliance: Factsheets: Trauma of Victimization.” The NationalCenter for Victims of Crime. 2001. The New York City Allianceagainst Sexual Assault. 2004. Available online at <http://www.nycagainstrape.org>. 7 December 2004.“A Beginner’s Guide to the Key Concepts.” Public KnowledgeOnline. Available online at <http://www.publicknowledge.org/resources/introductions>. 7 December 2004.Cotton, Sarah Mitchell. “Chapter 3: Constructing the SlaveBody.” In Bodies of Knowledge: The Influence of Slaves on theAntebellum Medical Community. The Digital Library andArchives. Available online at <http://scholar.lib.vt.edu/theses/available/etd-65172149731401/unrestricted/CH3.PDF>.October 2004.

“A Guide to Understanding Informed Consent.” National CancerInstitute. 30 August 2001. Available online at <http://www.cancer.gov>. November 2004.“Guidelines on Good Publication Practice.” Committee onPublication Ethics (COPE). 2003. Available online at <http://www.publicationethics.org.uk/cope2003>. December 2004.Hurka, Thomas. Virtue, Vice, and Value. New York: OxfordUniversity Press, 2001.Kagan, Shelly. PHIL 456b: Theory of the Good. Yale University.Spring 2004.Kant, Immanuel. Groundwork of the Metaphysic of Morals,translated by H. J. Paton. New York: Harper & Row Publishers,Inc., 1964.“Office of Vital Records.” Rhode Island Department of Health.2005. Available online at <http://www.health.ri.gov>. 8 July2005.O’Leary, J. Patrick. “J. Marion Sims: A Defense of the Father ofGynecology,” Southern Medical Journal, 97 (2004): 427.Quinn, Carol. “Taking Seriously Victims of UnethicalExperiments: Susan Brison’s Conception of the Self and ItsRelevance to Bioethics,” Journal of Social Philosophy, 31 (2000):316-325. Available online at <http://www.blackwell-synergy.com>. 12 October 2004.Sartin, Jeffrey S. “J. Marion Sims, the Father of Gynecology:Hero or Villain?” Southern Medical Journal, 97(2004): 500.“Summary Fact Sheet on HIV/AIDS.” Office of National AIDSPolicy. The White House. 2000. Available online at <http://www.whitehouse.gov/onap/facts.html>. 6 December 2004.“Ten Misconceptions about Pharmaceutical Patent Litigation.”The Pharmaceutical Research and Manufacturers of America.16 July 2002. Available online at <http://www.phrma.org/mediaroom/press/releases/16.07.2002.457.cfm>. December2004.Watson, Julie. “Teen Girls Raped by Mexican Cops.” AssociatedPress. 16 October 1999. Available online <http://lists.village.virginia.edu>. 7 December 2004.

BibliographyAllina, Amy et al. “The Quinacrine Debate and Beyond:Exploring the Challenges of Reproductive Health TechnologyDevelopment and Introduction.” Reproductive HealthTechnologies Project. 2002. Available online at <http://www.rhtp.org/emerging_issues/pdfs/rhtp_full_report.pdf+%22unethical+data%22+AND+bioethics&hl=en>.11 November 2004.Cohen, Baruch C. “The Ethics of Using Medical Data from NaziExperiments,” Jewish Law, Jewish Virtual Library: A Divisionof the American-Israeli Cooperative Enterprise. Availableonline at <http://www.jewishvirtuallibrary.org/jsource/Judaism/naziexp.html>. 12 October 2004.“Ethical Issues in International Research—Setting the Stage.”Ethical and Policy Issues in International Research: ClinicalTrials in Developing Countries. National Bioethics AdvisoryCommission (NBAC). Available online at <http://www.georgetown.edu/research/nrcbl/nbac/clinical/Chap1.html>. 29 September 2004.Haran, Christine. “Trauma’s Aftermath: Coping with PTSD.”ABC News. 3 November 2004. Available online at <http://abcnews.go.com/Health/print?id=236229>. 7 December 2004.Lombardo, Paul, Ph.D., J.D. “Health Care Confidentiality:Current Virginia Law and a Proposal for Legislation.”Developments in Mental Health Law. 15(2). Institute of Law,Psychiatry, and Public Policy. The University of Virginia.


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Available online at <http://www.ilppp.virginia.edu/DMHL/Issues/Confidentialityv15n2.html>. 1 December 2004.Neuhaus, Paul. “The Ethics of Data Collection and Usage.”Information Ethics Problem of the Month. Carnegie MellonUniversity Libraries. June 21, 2004. Available online at <http://www.library.cmu.edu/ethics7.html>. 11 October 2004.“The Nuremberg Code.” In Trials of War Criminals before theNuremberg Military Tribunals under Control Council Law No.10, Vol. 2, Washington, D.C.: U.S. Government Printing Office,1949), 181-82. Office for Human Research Protections.Available online at <http://www.hhs.gov/ohrp/references/nurcode.htm>. 11 November 2004.Ryan, Caroline. “‘Nazi Shadow’ over IVF Research.” BBC News.June 28, 2004. Available online at <http://news.bbc.co.uk/go/pr/fr/-/2/hi/health/3837169.stm>. 12 October 2004.Tereskerz, Patricia M. “Research Accountability and FinancialConflicts of Interest in Industry Sponsored Clinical Research:A Review.” In Accountability in Research. Taylor & Francis Inc.,2003, 137-58.“World Medical Association Declaration of Helsinki: EthicalPrinciples for Medical Research Involving Human Subjects.”The World Medical Association. Available online at <http://www.wma.net/e/policy/b3.htm>. November 2004.

Singleton v. Norris: Precursor to Abu Ghraib?The Importance of Role Integrity in Medicine

Michael K. Gottleib

Judges are always engaging in balancing. In greatcontrast is the medical profession in which physicianswork towards a common goal, namely the aid of thepatient.

—Justice Harry Blackmun1

I am in this earthly world; where to do harm

Is often laudable, to do good sometime

Accounted dangerous folly.

—Macbeth, IV, ii

IntroductionPhysicians often face conflicts between their professional dutyof loyalty to patients and their conflicting responsibilities tothird parties. This latter responsibility may be to familymembers, or other parties interested in a patient’s welfare.Or, it may take an economic form, increasingly reflected bythe influence of health plans and other third-party payors inclinical decision-making.2 Or, it may be a responsibility to acourt’s request for a forensic evaluation, or to a state institution,like a prison, which requires specific duties of physicians thatconflict with those they would otherwise honor. Or, theresponsibility may be to the military, whose ultimate goal is toprotect the security of a population over that of individuals. Ineach case, these additional or peripheral responsibilities maydivide the physician’s initial duty to patient care.

Military duties are often particularly difficult to square withother personal and professional, or even legal, duties. Thehistory of judicial deference to the military in this country,embedded in the Constitution3 and known as the separatecommunity doctrine,4 reflects our willingness to cabin militaryduties as both separate from other duties and (for the mostpart) absolute.5 Perhaps it should not be surprising, then, thatwhen a service member believes a given order to be in conflictwith his or her own moral value or ethical code, an easyjustification is available: the imposed military duty is a separateresponsibility apart from those that normally attach to anindividual in his or her “personal” life.6 One is not to be heldpersonally responsible for actions performed while operatingin a specific (and sanctioned) role such as soldier, attorney,physician, etc. One may only be held professionally responsible(i.e., judged on the basis of shared professional ethicalguidelines). It remains an open question how individuals oughtto honor their personal values when professional duties requireconflicting action, and much of the literature on role moralityhas focused on this question.7 The implications of sacrificingone’s personal moral values for professional obligations canbe disturbing, even if ultimately justifiable from a utilitarianperspective.

More disturbing, however, should be the apparent easewith which robust professional norms and duties in oneprofession (namely, medicine) seem to have been suppressedin favor of those in another (namely, the military). The strongevidence that doctors ignored, justified, or even helped in thehumiliation, degradation, and physical abuse of Iraqi detaineesat Abu Ghraib has shocked many in both the medical andnonmedical communities.8 Mounting evidence suggests thatphysicians falsified and delayed death certificates, shareddetainees’ medical information with military interrogators,ignored abuse, and covered up homicides9—all activities inclear contravention of international law and medical ethics.10

While the abuse by nonmedical reservists has attractedsubstantial Congressional and media attention,11 which hascentered on personal culpability and the individualtransgressions of a few, the discussion of abuse by physiciansand nurses has been far less widespread and often shifts thefocus to institutional problems stemming from the influentialpower of the military and its virtual nonreviewability. 12 Afterall, if the Supreme Court of the United States defers to thejudgment of the armed forces, why shouldn’t a uniformedphysician do the same?

The question itself reveals the answer in its impliedunderstanding of the physician and her role. The physician inthe question is a professional, enlisted, recruited, hired, orseconded like any other, to advance the goals of the military.She would seem to have no discrete medical obligations thatmight rise to the level that they challenge those of her militaryduties. Her professional ethics are no more robust or supportedor recognized by the military or government than are herpersonal ethics. Given the current status of medicalprofessional norms and responsibilities in the military, whichmake them virtually indistinguishable from personal normsand responsibilities, a physician’s complicity and involvementin “legal,” but medically unethical, activity in Iraq andAfghanistan should not surprise us any more than theparticipation of decent and good nonmedical personnel whofollow orders that come under judicial review in retrospect.13

This view of the physician and her professional role (asdeferential to military norms, be they legal or not) is neithernew nor unique. I propose, on the contrary, that thedisempowered professional role of the physician is a result ofthe gradual degradation of the medical role by courts and by


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physicians themselves over the past thirty years. The physicianinvolvement at Abu Ghraib typifies a broader situation in whichAmerican physicians increasingly allow other duties to trumptheir ethical obligations to patients and to the profession. Thispaper focuses on one recent example of the degradation of aphysician’s core responsibilities—the forced medication ofdeath row inmates for the purpose of executing them—asone example of factors leading up to the sins (of omission andotherwise) committed by physicians and nurses whootherwise represent the best of the medical professionthrough their service and sacrifice.

Undergirding this analysis are two basic claims. First, thatthe state has an interest in preserving (or at least notthreatening)14 public trust in certain professions that benefitsociety.15 And second, that medical professionals, by virtue ofthe nature of their work and its effects, should be given greaterdeference in pursuit of their ethical obligations than otherprofessionals. The work of the physician is not only unique inthat it involves particular vulnerabilities on the part of patientsbut also because it carries the potential to elicit powerful andconflicting psychological and emotional impulses on the partof physicians and patients. The integrity of the medicalprofessional role is of greater importance than appears at firstblush, and, although it would be foolish to suggest that medicalprofessional values should always trump competing values,stronger support of medicine’s autonomy is called for, as wellas a more formal structure of accountability for those whowould violate the profession’s core values. A history of medicalinvolvement in immoral activity, state-sanctioned or otherwise,demonstrates that when physicians become morally detachedfrom the interests of their patients, abuse flourishes.16 At thevery least, judges and policy-makers ought to attend morecarefully to this phenomenon in their evaluations of medicalethical norms.

Recent medical jurisprudence in this country has servedto degrade the integrity of the physician’s role. Physicians’obligations to nontherapeutic ends ought to be reconsideredin light of increasing role conflict faced by physicians anddecreasing support from courts and legislators. Policiesprotecting physician autonomy in the ethical pursuit of themedical profession should be supported, and the primaryduties of physicians employed by the state (in prisons, incourts, and in the military) should be clarified and protectedby law.

Reasoning from a specific case to general policy, this paperdiscusses the involvement of physicians in the forcedmedication of a death row inmate against the backdrop of theabuse at Abu Ghraib, as well as the psychological dynamics ofmedical care, which have been all but disregarded in thediscussion of physician responsibility to the aims of criminaljustice and the military.Singleton v. Norris: Physician-Assisted ExecutionOn a warm summer night in Arkansas in 1979, a young mannamed Charles Singleton walked into York’s grocery store inthe small town of Hamburg, Arkansas, and asked for a pack ofcigarettes.17 When Mary Lou York turned around to hand overthe cigarettes, Singleton showed his gun and demanded allthe money in the register.18 York refused and fought withSingleton.19 Singleton fired the gun and missed, then stabbedMary Lou York in the neck with a knife.20 Charles Singletonwas prosecuted for robbery and felony murder. Evidenceshowed blood on his clothes, as well as ear witness accountsof the crime, and Singleton confessed.21 He was convictedand sentenced to death in 1979 by the Circuit Court of AshleyCounty, Arkansas, for capital murder.22 He then remained ondeath row for longer than any other prisoner in the state’s

history.23 He appealed through both the state and federalsystems on procedural grounds,24 claiming ineffectiveassistance of counsel and invalid aggravating factors25 until 1998,after twenty years of appeals, when a new issue arose—onethat lies at the center of medical ethics, health policy, and law.

During Charles Singleton’s lengthy incarceration, hebecame psychotic and was diagnosed with paranoidschizophrenia.26 In 1997, he was medicated involuntarily27

because he was found to be a danger to himself and others,28

and his treating psychiatrists found that it would be in his bestmedical interest to receive treatment by force.29 Thisevaluation changed, however, once Singleton was sentencedto death. The Constitution requires that prisoners be mentallycompetent to be executed.30 Mentally retarded individualscannot be executed,31 nor can individuals who are psychotic.32

The standard is, generally, that the individual being executedmust understand the crime committed and the punishmentprescribed. Singleton’s physicians were faced with a troublingdilemma. Unmedicated, Charles Singleton was floridlypsychotic. He suffered from hallucinations and delusions, andhe mutilated himself. But he was alive. Once medicated, hewould be killed. The question before the Eighth Circuit Courtof Appeals in Singleton v. Norris33 was whether a psychoticprisoner could be medicated without consent, even if hispsychosis is the only thing keeping him from being executedby the State.Execution of Incompetent Individuals: “A MiserableSpectacle”The notion that it is inappropriate to execute incompetentindividuals dates back to late fifteenth-century common law.Sir Edward Coke argued, for example, that “because executionwas intended to be an ‘example’ to the living, the executionof ‘a mad man’ was such a ‘miserable spectacle...of extremeinhumanity and cruelty’ that it ‘can be no example to others’.”34

The Supreme Court recently made the following observationin Ford v. Wainwright:

[T]oday, no less than before, we may seriouslyquestion the retributive value of executing a personwho has no comprehension of why he has beensingled out and stripped of his fundamental right tolife. …Similarly, the natural abhorrence civilizedsocieties feel at killing one who has no capacity tocome to grips with his own conscience or deity is stillvivid today. And the intuition that such an executionsimply offends humanity is evidently shared acrossthis Nation (Ford v. Wainwright, 477 U.S. at 409).

The Court noted that the prohibition against killing theinsane does not merely “protect the condemned from fearand pain without comfort of understanding” but also“protect[s] the dignity of society itself from the barbarity ofexacting mindless vengeance.”35

The Ford Court, therefore, deferred to an historical and“natural abhorrence” to such “barbarity”36 and found that thestate interest for retribution did not overcome the rights of thecondemned nor the dignity of society. The punishment,according to the Court, becomes “mindless” when the persondoes not know the reason for which the punishment is beingmeted out. Additionally, the Supreme Court has requiredcompetency so that convicted individuals would have theopportunity to appeal.37 The procedural safeguards anticipatedcannot be actively pursued if the individual is not competent.Some believe that competency is required for individuals tomake peace with their God before death, or at least to cometo terms with their death. Lastly, some have argued that it isinhumane to kill someone with severe disturbances of the


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cognitive capacities of consciousness, comprehension, orreasoning, regardless of whether or not these capacities riseto the level sufficient to participate in their own defense or toseek reconciliation in religion.38

Clearly, this case presents a number of issues concerningthe death penalty (e.g., the purpose of medication, the rightsof a petitioner, etc.). The important question, however, forunderstanding physician behavior is: “What are, or should be,doctors’ duties to their patients, and should the law respectsuch duties?” My aim is to address the issues raised bySingleton’s claim and to discuss specifically the ethical duty ofa physician employed and instructed by the government torender care so as to effectively prepare his patient forexecution. I will not discuss the ethics of execution as a criminalpenalty in the United States.39 I will, however, include a brieflegal history of the issue because my intention is to uncoverand introduce some of the professional ethical conflicts forphysicians that contribute to the dilemma presented by theSingleton case.Legal History: The “Medically Appropriate” RequirementThe United States bars executions of mentally-ill prisoners.40

And, although the Supreme Court has decided several casesin which a criminal defendant or a convicted criminal may bemedicated against his or her will, it denied certiorari on theSingleton case.41

The Court has ruled that a prisoner has a “significant libertyinterest” in avoiding the unwanted administration of anantipsychotic drug.42 But there are cases in which the SupremeCourt has allowed the state to forcibly medicate an inmate orcriminal defendant without consent. In Washington v. Harper,the Court found that if an inmate is a threat to himself orothers while incarcerated, and if medication is also in his“medical interest,” then the state may forcibly medicatewithout consent.43 The Court has also noted that a state maybe justified in forcibly medicating an insane criminal defendantif it can establish that “it [cannot] obtain an adjudication of [adefendant’s] guilt or innocence by using less intrusivemeans.”44

Nondangerous criminal defendants may also be forciblymedicated if doing so will render them competent to standtrial, and if doing so is “sufficiently important to overcome theindividual’s protected interest in refusing it.”45 In Sell v. UnitedStates, the Court found that the government had not shown aneed for treatment without consent and overruled the EighthCircuit on the issue.46

No court other than the Eighth Circuit in the Singletoncase has addressed the issue of whether the state can medicatean inmate for the primary purpose of carrying out his sentenceonce he has been found guilty. In Singleton, a divided EighthCircuit held that the Eighth Amendment, forbidding “cruel andunusual punishments,” is not violated by forcibly medicatingan insane condemned person so that he becomes sufficientlysane to execute.47 The court held that the state could force amentally ill criminal defendant to take antipsychoticmedication in order to render him sufficiently competent tobe executed. To reach this decision, it applied the same testthat it used in Sell (which went uncontested by the SupremeCourt on appeal): the state must “(1) ‘present an essentialstate interest that outweighs the individual’s interest inremaining free from medication’, (2) ‘prove that there is noless intrusive way of fulfilling its essential interest’, and (3)‘prove by clear and convincing evidence that the medicationis medically appropriate’.”48

The Eighth Circuit Court found that the government has acompelling interest in carrying out a lawfully imposed criminalsentence. It ruled that the state’s interest in carrying out

Singleton’s sentence outweighed Singleton’s interest inremaining free from medication in this case. (Even Singletonpreferred to be medicated rather than unmedicated, so longas he wasn’t going to be executed as a result.) The Court alsofound that no less-intrusive method existed by which the statecould attain its end. Finally, the Court found that Singleton’smedication was medically appropriate and that there was noneed to factor the issue of execution into the consideration ofSingleton’s medical interest. Because it was in Singleton’sshort-term interest to be medicated, it satisfied the third prongof the Eighth Circuit’s Sell test.

Several problems have been noted in the Eighth Circuit’sruling.49 Most troubling, however, to physicians, is the problemnoted in State v. Perry (1992): “[F]orcing a prisoner to takeantipsychotic drugs to facilitate his execution does notconstitute medical treatment but is antithetical to the basicprinciples of the healing arts.”50 The physician who prescribesthe drugs arguably violates medical ethical tenets ofbeneficence and nonmaleficence.51

The predominant legal question, which received the mostattention throughout Singleton’s case, was, “Does the forcedadministration of antipsychotic drugs to render Singletoncompetent to be executed unconstitutionally deprive him ofhis ‘liberty’ to reject medical treatment?”52 But an equallyimportant question (and more reflective of the medical legalnorms surrounding recent scandals in Iraq, Afghanistan, andGuantanamo Bay) is, “Does the same forced care deprive thetreating physician or physicians of a right to practice medicinewithin the ethical framework and guidelines of theirprofession?” And if not, why not? When, if ever, should thelaw defer to a profession’s ethical standards and requirements?In other words, Singleton may not have had a compelling legalor ethical right to avoid execution, but his physician may havea right (and perhaps an obligation) to refuse to treat Singleton,given the fatal consequences of that treatment and thepotential consequences for the profession.53 One wondershow the Singleton case might have been argued or decided ifit had remained before the Court during or after the reports ofphysician involvement at Abu Ghraib had surfaced.Precedent: The Offense PrincipleAs in any case with more than twenty years of history andappeals, Singleton’s is far more complicated than I havedescribed thus far, but the central issue of when the state mayand should forcibly medicate a person has been the mosttroubling (among the issues presented by Singleton) for thecourts to adjudicate.54 There is, however, some guiding caselaw. Several similar issues have come before the courts. InWashington v. Harper, which involved the forced medicationof a prisoner in a correctional facility, the Supreme Courtrecognized that an individual has a “significant” constitutionallyprotected “liberty interest” in “avoiding the unwantedadministration of antipsychotic drugs.”55 However, the Court(apparently guided by principles of harm and paternity)concluded that the state law authorizing involuntary treatmentamounted to a constitutionally permissible “accommodationbetween an inmate’s liberty interest in avoiding the forcedadministration of antipsychotic drugs and the state’s interestsin providing appropriate medical treatment to reduce thedanger that an inmate suffering from a serious mental disorderrepresents to himself or others.”56

Singleton’s case was different, of course, in that the State’sinterest extended beyond protecting Singleton and others fromharm, and toward the pursuit of justice in carrying out asentence for a crime. One might easily anticipate an argumenton behalf of the State based on the Offense Principle, whichclaims an offense against Singleton’s victims and their fellow


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citizens as a result of Singleton’s having successfully avoidedhis punishment. This kind of argument would be supportedby the finding in Riggins v. Nevada.57

In Riggins, a case involving a defendant who was unfit tostand trial without treatment by antipsychotic medication(which he refused), the Court decided that an individual has aconstitutionally protected liberty “interest in avoidinginvoluntary administration of antipsychotic drugs”—an interestthat only an “essential” or “overriding” state interest mightovercome.58 The Court suggested that, in principle, forcedmedication in order to render a defendant competent to standtrial for murder was constitutionally permissible. The Court,citing Harper, noted that the State “would have satisfied dueprocess if the prosecution demonstrated…that treatment withantipsychotic medication was medically appropriate and,considering less intrusive alternatives, essential for the sake ofRiggins’ own safety or the safety of others.”59 The Court notedthat the State “[s]imilarly…might have been able to justifymedically appropriate, involuntary treatment with the drug byestablishing that it could not obtain an adjudication of Riggins’guilt or innocence” of the murder charge “by using less intrusivemeans.”60

The question in Singleton’s case, then, may have beenwhether the execution of an individual is as “essential” or“overriding” a state interest as the adjudication of thatindividual’s guilt or innocence.

The Supreme Court’s rulings thus far point toward aconstitutional permission granted to the government toinvoluntarily administer antipsychotic drugs to a mentally illperson only if (among other things) the treatment is medicallyappropriate, which the Court defines as “in the patient’s bestmedical interest in light of his medical condition.”61

Primary Ethical ChallengesBut how can any treatment be considered in a patient’s bestmedical interest if the consequence of that treatment will becertain death for the patient? And what exactly is meant by“the patient’s best medical interest?” Should one view thedetermination of that interest as guided only by the narrowmedical evaluation of health before and after treatment?Clearly, the concerns of most physicians will be that the patientmay benefit from treatment in the short term (antipsychoticmedication, in this instance), but the secondary result will bedeath…decidedly not in the patient’s best medical interest.And, since most physicians will view their duties of beneficenceand nonmaleficence as extending beyond the period of timeimmediately after the prescribed treatment, the patient’s “bestmedical interest” would likely be interpreted by the medicalprofession as having wider implications. Indeed, physiciansare trained to view patients in light of their full medical historyand underlying diagnoses, as well as the current environmentand situation in which they are evaluated. Physicians mustconsider treatments in terms of all their effects, intended andincidental, immediate and eventual.62 The Eighth Circuitdisregarded this value by dividing Singleton’s medical interestsinto short and long term, and then considered only the former.

As the four dissenting circuit judges indicate, the majority’sopinion “leaves those doctors who are treating psychotic,condemned prisoners in an untenable position: treating theprisoner may provide short-term relief but ultimately result inhis execution, whereas leaving him untreated will condemnhim to a world such as Singleton’s, filled with disturbingdelusions and hallucinations. …[This] ethical dilemma…is notsimply a policy matter; courts have long recognized the integrityof the medical profession as an appropriate consideration inits decision-making process.”63 Both the American MedicalAssociation and the American Psychiatric Association have

stated that participation in execution by physicians isunethical.64 They have not, however, defined what is meantby “participation.” What is implied, however, is that nophysician should pursue a course of treatment that will resultin or lead to a patient’s death,65 be that treatment the proximal,secondary, or remote cause.66

There may be some exceptions to the guideline, but theyshould be asserted as such. It is boldly disingenuous to claimthat one’s involvement in a patient’s care ceases at the momentthat the physician’s labor is complete. Other values mayoverride the physician’s duty to care for the patient (e.g.,national security, public health and safety), but in Singleton’scase the legal presumption was that physicians were caringonly for the patients’ immediate medical condition, and thattheir treatment was unrelated to its deferred consequences.

This is implausible. Singleton’s involuntary medication,while legal under Washington during a stay of execution,became unethical once an execution date was set becausethe treatment rendered was no longer in the patient’s bestmedical interest. This was a novel issue for the courts, as theconsequences of treating Singleton with antipsychoticmedication affected his medical interests in a way that it didnot affect Harper’s or Riggins’s. While serving a long prisonsentence or standing trial may not have been in Harper’s orRiggins’s best medical interest, neither necessarily constituteda specific and certain medical harm. These claims failed inSingleton’s defense because they were made on behalf of theinmate-defendant and not the physicians. Limited to abalancing test between justice (carrying out a lawful sentence)and liberty (not forcibly medicating an individual), thedefendant’s argument begged the relevant question: Whyshouldn’t Singleton be treated? Because if he’s treated, he’llbe executed. Why shouldn’t he be executed? Because hecan’t be executed without being treated. It is doubtful thatthe Supreme Court, in its discussion of “best medical interests,”intended such an outcome—that criminals should beprotected by the state from the very actions that the stateimposes upon those individuals. Of course execution is not inthe patient’s medical best interest, but the state does not, inthis case, have that kind of medical interest in mind.67

More compelling, and more appropriate to the balancingof competing social values, were the interests of the physicianand the medical profession (and the social values thereembedded). The second legal question, then, “Does the forcedcare of Singleton deprive the treating physician or physiciansof a right to practice medicine within their profession’s ethicalframework and guidelines?” would have been more productivefrom the perspective of all stakeholders, except theprosecution.

Implicit in the legal question are two ethical questions:“Should physicians ever treat a patient when such treatmentis not only without the patient’s consent, but also not in thepatient’s best medical interest?” and “Do the state’s justiceinterests ultimately trump those of the physicians?”Common Morality versus Professional Ethic: “To Do a GreatRight, Do a Little Wrong” 68

The question Singleton’s case presents for physicians may beseen as a conflict between a common morality and aprofessional ethic. Viewed in that light, the moral dilemmapresented by the Singleton case resembles that of Tarasoff v.Regents of University of California.69 In that case, the CaliforniaSupreme Court held that in certain limited circumstanceswhen a physician determines—or should have determined—that her patient presents a serious danger of violence toanother, she incurs a duty to use “reasonable care to protect


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the intended victim.”70 If she fails to do this, she may be liablefor tort damages.71

The goals of common morality in Tarasoff (protectingpotential victims from harm) were viewed by a majority of thepresiding court to outweigh the reasonable and valuableprofessional ethic of confidentiality and undividedcommitment to the patient (even though that ethic was arguedby the minority to have been an element of a more valuablegoal of common morality—to provide psychiatric aid to thosewho would otherwise commit harm to ever more potentialvictims).72 Should we be guided, then, by the majority inTarasoff when they concluded that the “protective privilegeends where the public peril begins?”73 Should Singleton’s rightto liberty end only where public peril begins? More importantly,should the descriptive ethics of a professional code be honoredonly until such time as it creates or supports some kind ofpublic threat (anywhere from menace to peril)?

Even the ethical guidelines of psychiatry (a professionhistorically supportive of strong professional autonomy) yield,ultimately, to a common morality represented by law. As DanBeauchamp notes, the “Ethical Guidelines for the Practice ofForensic Psychiatry” of the American Academy of Psychiatryand Law (AAPL) clearly state that “substituted consent” maybe obtained “in accordance with the laws of the jurisdiction,”74

suggesting that the profession’s ethical guidelines readily yieldto the law of the land, whatever it may be. It would seem,then, at least according to AAPL, that if the courts decide thatforcible medication of a psychotic person is legal (whether itbe in the medical interest of that patient or not), then thephysician is ethically free (and perhaps obligated) to act inaccordance with that decision. Beauchamp further notes,however, that “[t]he law is not the repository of our moralstandards and values, even when the law is directly concernedwith moral problems. …[F]rom the fact that something is legallyacceptable, it does not follow that it is morally acceptable.”75

Physicians have historically taken their moral guidancefrom the maxim primum non nocere, “Above all, do no harm.”As W. D. Ross suggests, a prima facie obligation must be fulfilledunless it conflicts on a particular occasion with an equal orstronger obligation.76 The physician has no obligation to punish.Her obligation is to provide care, as should be her first, if notonly, obligation.77 When a physician enters a treatmentrelationship with a patient, her role is clear. She must treat thepatient.78 Any obligation the physician may have to contributeto a wider social justice does not a priori outweigh the obligationto provide care to the patient. If we were to accept such acompeting value as duty to greater societal justice, we mightconsider it unethical for physicians to treat and care formurderers, rapists, and enemies of the state.

Some suggest, however, that the physician can step inand out of her role as she likes.79 I do not agree. Physicianscannot step in and out of the role. They may refuse to enterthe relationship, and such is the case of physicians who takeadvantage of so-called conscience clauses, which excusephysicians from the legal responsibility to treat undercircumstances that violate their religious or moral beliefs.80 If,however, a physician does treat an individual with medicalcare, a doctor-patient relationship necessarily exists.81 If therules and role definitions surrounding the doctor-patientrelationship are meant to protect both individuals frompotential consequences of the treatment relationship, thenwhat other than treatment would be sufficient criterion forthe relationship to exist?82

The Consequentialist ApproachConsequences of forced medication include, on one hand,the preservation of effective justice (including the vindication

of victims), and, on the other hand, a challenge to the integrityof physicians’ autonomy and professional ethic. Notmedicating Charles Singleton would result in exactly the reverseset of circumstances. Which, then, is the best utilitarianoutcome?

The deterrent function of criminal justice relies on theperception that sentences are carried out. Perceivedweaknesses in the system may weaken its effectiveness. Therelevant adverse consequences of this particular action are,however, extremely limited. It is not the criminal justice systemin toto that is being obstructed or impeded. Rather, it is theprescribed justice in a particular case in which a certainpunishment (the most severe our system allows) isundeliverable for the time being. And Charles Singleton neverattempted to fully escape punishment.83 He was incarceratedwithout parole. He was suffering insofar as while he continuedto live, he did so in a psychotic state. Furthermore, with regardto the potential weakening of deterrent values, the numberof cases involving a death row inmate who is insane and hasrefused to be treated medically for his mental illness areconsiderably small. The integrity of the justice system wasnot, therefore, practically threatened in this case.

The integrity of the medical code, however, has beenmore substantially affected. First, Singleton’s treatingphysicians were instructed to act in a professional capacitythat was not in their patient’s medical best interest. Theyarguably violated the most sacred provision of their professionalcode. More important, however, is the potential effect on themedical community. A precedent has been set for the state’sright to order a physician to treat a patient not only against thepatient’s expressed wishes but also against the physician’s bestmedical judgment, her professional code of ethics, and herprima facie responsibility to do no harm. The consequencesof such a precedent are broad. They can be read into thedebate over physician-assisted suicide,84 the duties of militaryphysicians, forensic evaluation, and palliative care. The narrowinterpretation of a patient’s medical best interest favored bythe Eighth Circuit renders the value of professional medicalduties meaningless. If a physician’s duty extends no furtherthan the immediate effect of treatment rendered, withoutregard to any consequences, then the physician “involvement”in interrogation and abuse at Abu Ghraib, Guantanamo, and inAfghanistan was not illegal nor, by the court’s reasoning,unethical. To restrict professional duties and obligations tothe intent of the practitioner is to eliminate the concept ofprofessional role morality. The effect can only be the reductionof professional responsibility to the scope of individual personalresponsibility. Insofar as no individual ought to intentionallycause harm to another, the role morality of physicians ought toestablish a higher standard of care, which ought to be supportedin law. Once physicians are permitted to deliver care thatdoes not preserve life and health (by order of the state, byrequest from patients, or by their own will), the nature of theprofession and of the work of a physician changes. Courtshave often favored this line of reasoning but only when itserves other public policies, like those disfavoring physician-assisted suicide,85 or aimed at pro-competition business modelsin health industries.86

Even if, in Singleton, it were conceded, arguendo, thatforced treatment is (given these particular circumstances)ethical, the treatment still should not have been permitted.The fact that the individual act is morally acceptable is notitself sufficient to justify the act.87 Though justice may be bestserved by restoring Singleton to sanity—even if for the solepurpose of executing him—the decision so adversely affectsthe integrity of medical practice that the otherwise moral actshould be avoided. Just as active euthanasia may be morally


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justified when patients nonetheless experience extreme,uncontrollable, and unremitting pain, it may be ethicallyappropriate to nonetheless restrict physician-assisted suicidebecause of the difficulties involved in controlling abuses ofthe practice. Of greater concern, however, will be the furthercomplication of the already incredibly cumbersomepsychological task of the physician, which I will address below.Primum Non Nocere“I will not give a drug that is deadly to anyone…nor will I suggestthe way to such a counsel.”88 This prohibition against the useof deadly drugs by physicians has been interpreted by many asa prohibition against physician-assisted suicide, euthanasia, andinvolvement in executions.89 The National Catholic BioethicsCenter has rewritten the passage as follows: “I will neitherprescribe nor administer a lethal dose of medicine…norcounsel any such thing nor perform act or omission with directintent deliberately to end a human life.”90 The interpretationof the original prohibition (though arguably valuable tocontemporary medical ethics) is dubious. Ancient Greekspracticed capital punishment. And although there is no recordof whether physicians participated in executions, the matterdoes not seem to have been relevant to the prohibition againstgiving “deadly drugs.” Rather, the rule most likely addressedfears that physicians would collaborate with murder bypoisoning.91 Appeals, therefore, to ancient values to support acontemporary prohibition against physician involvement inexecutions are ultimately unconvincing. Furthermore, theSupreme Court has clearly indicated that it shows littledeference to the Hippocratic Oath in guiding its Constitutionalinterpretation.92

More convincing, though, are appeals to another ancientvalue, which, though not misinterpreted, has been historicallymisattributed. The paramount principle in Western medicalethics is, and has been, “Do No Harm.”93 But where did thisprinciple come from, and what does it mean? The idea isoften incorrectly attributed to the Hippocratic Oath, but neitherthe Oath nor any Greek medical treatise contains any suchphrase. The closest idea appears in Epidemic I: “Practice twothings in your dealings with disease: either help or do notharm the patient.”94 It is unclear how or when “First, do noharm” came to be attributed to Hippocratic medicine, or howit became the paramount principle.95 Its history, however, isrevealing of the medical norms our current jurisprudencethreatens to degrade. Steven Miles traces the idea to 416 BCE(about the time that the Hippocratic Oath was written), atwhich time Nicias, an Athenian general and politician, spokeagainst what he accurately judged would be a disastrous militaryexpedition to Sicily. He called upon the chair of the AthenianCouncil to “be the physician of your misguided city…the virtueof men in office is briefly this, to do their country as muchgood as they can, or in any case no harm that they can avoid.”96

The analogy is striking. To compare a physician to a militaryleader illuminates the inherently aggressive nature of medicalpractice and the need to temper aggressive (even murderous)impulses with virtuous principles. It is remarkable to thinkthat the most well-known tenet of medical ethics originatedfrom an intended restraint against explicitly hostile activityand not simply well-intentioned risk (as it has come to beused). As Steven Miles notes, “First do no harm…is of overratedutility. All therapies entail risk. A physician could not performany surgery or administer any drug (even one dose of penicillinthat could cause a lethal allergic reaction) if he or she wasobliged to avoid the chance of harm. The pursuit of therapy—any therapy—represents a decision that the probability andmagnitude of benefits outweigh the chance and severity ofharms. This clinical calculation accepts risks rather than

avoiding them.”97 Yet, it is worth recognizing the originalmeaning of the principle, especially when one frames theguidelines within a psychoanalysis of medicine.Managing Conflict and Aggression: A PsychodynamicAccountWhy should a prohibition against aggression by a physician beso entrenched in the history of modern medicine? Regardlessof its history, nonmaleficence has persisted in one form oranother as a guiding principle of clinical medicine more thanany other98 and often undergirds denunciations of physicianinvolvement in human rights abuses99 and capitalpunishment.100 But why should this one value be so importantas to outweigh all others that may inform a physician’s decision-making? The answer reveals a potent conflict in the physician’swork that the courts have generally not understood, or perhapsnot valued.

This conflict is what Robert Burt calls the “ubiquitousfeature of medical practice:”101 that helping patients frequentlyinvolves inflicting bodily harm on them (cutting them open,penetrating them with painful needles or catheters ordiagnostic scopes, invading them with near-poisonouschemicals or radiation).

To carry out these various iatrogenic invasions,physicians must overcome deep-seated inhibitionsinculcated in everyone from early childhood. One ofthe implicit agenda items in initial medical training isto encourage and assist fledgling physicians totranscend their inhibitions (as in their dealings withcadavers, their so-called “first patients,” in GrossAnatomy Laboratories). Many techniques are offeredfor this purpose, most notably, the fervent belief thatpatients are helped to restored health and prolongedlife by all medical practice, no matter how horrificparticular medical interventions might appear topatients or to physicians.102

In almost every profession, there is a cardinal prohibition.While many professional transgressions may be tempting, andsome more devastating than others, there is often onetransgression that professionals tend to regard as distinct.103 Inmost cases, that prohibition is against some transgression that,while devastating to the profession, is simultaneously seductiveand not easily avoided by the professional. For the legal field,perhaps the prohibition against lying is paramount because ofthe ease and appeal of doing so in an adversarial setting. Whilestealing a client’s assets may have equal or even worse practicalconsequences, the temptation to steal is no greater for a lawyerbecause of his role. It may, however, be of greater temptationfor an accountant because of her role. For the clergy (and fortherapists), perhaps abuse of power in the relationshipbetween clergyman and congregant (or therapist and client)is the ultimate transgression because of its adverse effects butalso because of the strong pull toward such a transgressionthat must be consciously avoided. It is the nature of the role inthese cases that provides the special opportunity for particularmalfeasance. For physicians, there is a special opportunity for(and a strong—if largely unconscious—pull toward)aggression.104

Much has been written about physicians and psychologicalconflict, particularly around feelings of aggression.105 FrederickHafferty’s close observation of medical students and physiciansis of one the most notable contributions to this discussion.106

In one series of interviews, Hafferty asked medical studentstoward the conclusion of their first-year lab experience whetherthey would donate their own bodies to medical schools foreducational purposes. What is most interesting, for the


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purposes of this discussion, about the answers he recorded isthe kind of language used by students:

One cannot help but be struck by the symbols ofviolence and destruction. Answers rarely containedsuch scientifically neutral terms as dissection, probe,and pick. In their place emerged more physical,graphic terms: slash, rip, pull apart, hack….107

This language of aggression was present only at the end ofa lengthy interview, and only when students were asked toput themselves in the place of the cadavers with which theyhad been working. Only then could these studentsacknowledge to themselves the inherently violent nature ofmedical practice.108 The transgression of deep taboos aboutrespect for bodily integrity has always accompanied the dutyof the physician, and yet it is rarely, if ever, discussed oracknowledged.109 In fact, the practice of medicine (fromsurgery to psychiatry) is invasive, aggressive, and likely accountsfor the often detached or asocial behavior that traditionallycharacterizes practitioners.110 Perhaps this is one explanationfor some physicians’ tendency to depersonalize theirencounters with patients. The stereotype of the arrogantsurgeon who has no interaction with his patient before or aftersurgery and views the body on the table not as a person, but asan object, is likely rooted in this psychological conflict. And itis an implicit and historical recognition of this unconsciousconflict that underlies the profession’s undeterredcommitment to principles of beneficence and non-maleficence.

In 1964, Anna Freud addressed medical students atWestern Reserve Medical School on the subject of what mayincline children to a later career in medicine as adults. Drawingfrom her vast experience with and observations of children,she took a few sentences from a speech of several pages todiscuss the role of aggressive wishes and impulses in medicalpractice:

[T]he child’s wish to help and to cure is…very closeto the wish to hurt and to maim. The younger thechild, the stronger the wish to hurt. The older andmore socially adapted he becomes, the more thisaggressive wish can be submerged under a strongurge to help.111

Some unconscious “work” is required for the physician tosuppress the overwhelming feelings of guilt that wouldotherwise be associated with aggressive wishes sublimatedthrough medical practice. In other words, for a surgeon to cutinto the flesh of a fellow human being and invade the mostpersonal space imaginable, she must depersonalize the objectand rest assured that her actions are curative and will not harm.A physician’s ability to do his work, therefore, is crucially basedon the knowledge that that work (however antagonistic itmay feel or appear) is for the patient’s benefit and to herhealth.The Social Psychology Perspective: “It Is Always Good MenWho Do the Most Harm in the World” 112

For years, evidence from social psychology has demonstratedthat minimal, but incremental, degradation of social andprofessional norms can lead to extreme and otherwiseunexpected abuse.113 The famous experiments conducted byStanley Milgram revealed the elements sufficient to turn“normal” people into executioners.114 Three of the mostimportant elements were (1) minimal initial compromises,(2) vague rules and boundaries, and (3) the re-labeling of roles.In the Milgram experiment, individuals were asked to harmtheir fellow subjects (actually confederates in the experiment)

minimally. Their instructions and obligations were vague.115

And the harming aggressor was re-cast as the helping “teacher.”Phillip Zimbardo’s famous Stanford Prison Experiment is

also an important source of empirical guidance.116 The 1971study demonstrated the power of roles and individualtransformation in obedience to prescribed role obligations.One guard wrote in his diary before the experiment, “as I ama pacifist and nonaggressive individual, I cannot see a timewhen I might maltreat other living things.”117 By day five of theexperiment, this same student wrote the following in his diary:“This new prisoner, 416, refuses to eat. That is a violation ofRule Two: “Prisoners must eat at mealtimes,” and we are notgoing to have any of that kind of shit. …Obviously we have atroublemaker on our hands. If that’s the way he wants it,that’s the way he gets it. We throw him into the Hole orderinghim to hold greasy sausages in each hand. After an hour, hestill refuses. …I decide to force feed him, but he won’t eat. Ilet the food slide down his face. I don’t believe it is me doingit. I just hate him more for not eating.”118

Although the Stanford Prison Experiment is most oftencited as an example of how role definitions can be used toincite individuals to harmful behavior that they wouldotherwise eschew, it may serve as an example of the equallypowerful potential of role definition to prevent harm. Whereasa pacifist cast into the role of a guard may be incited to doharm, a physician that self-identities as such and acts as aphysician may be protected from competing impulses orincentives to do harm. Put another way, the just cannot, bythe practice of justice, make people unjust.119 Milgram’s andZimbardo’s studies, despite their ethical flaws (striking inretrospect), provided explanatory power to the observationthat good men do bad things and brought the interaction ofsituational variables into the foreground of criminal behavior.The studies also show, however, how strong role identificationcan either support or counteract situational factors.120

Third-Party InfluencesAs Richard Wasserstrom observes, “[t]he existence of a systemof role-defined behavior can…create expectations relevantto the behavior of others not directly affected by the existenceof the role. These other persons also will come to expect thatthe role-defined behavior will continue, and this may give themlicense to act on these expectations rather than from a moreuniversal moral perspective.”121 Wasserstrom’s analysis wasdirected at attorneys, but is equally applicable to the recentevents at Abu Ghraib, where it may be argued that physicianinvolvement in detainee interrogation led to torture that mightotherwise not have taken place. As Bloche and Marks note,interrogators knew that physicians were observinginterrogation of detainees.122 Applying Wasserstrom’s intuitionto this situation, one can easily imagine interrogators’ relianceon the medical role as a “check” on their behavior.Noninterference by physicians could easily be read aspermission—not just by the individual physicians but by themedical profession and its ethics.ObjectionsThe call for greater deference to the integrity of medical normsand guidelines is largely based on the physician’s right to honorher role obligation of nonmaleficence. However, thephysician’s prima facie obligation to “do no harm” may beinterpreted as an instruction not to always avoid harming anypatient but to strive in one’s work to always balance harmagainst benefit. Clearly, the physician who breaks his patient’sribs to administer CPR is weighing harm against benefit in away that is unquestionably ethical and appropriate. As JayKatz wrote in a discussion of the inadequacy of professionalcodes of medical ethics, many of the ethical dilemmas


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encountered by physicians have “been all too uncriticallyassumed [to] be resolved by fidelity to such undefinedprinciples as primum non nocere….”123 The objection, then,would be that the act of medicating Charles Singleton wasnot, in fact, in contradiction to the physician’s duty. It could beargued that the physician is not “doing harm” by treating thepatient because the benefits (to society) of that action faroutweigh the costs (to the individual). One may further arguethat by refusing to medicate Singleton, the physician has indeed“done harm” to Singleton’s victims, to society, and to thecriminal justice system.

The problem with such an argument, however, is thatwhile the idea of nonmaleficence may include a balancing ofharm and benefit to any one particular patient, it is quite adifferent matter to suggest that harms against that same patientshould be weighed against benefits to someone or somethingother than that patient. In rare cases, we may ethically withholdcare from—or even inflict harm on—a patient to the benefitof others. We may consider it ethical to sacrifice one for thegood of the many, or we may have no choice but to do so—asin any number of classic ethical dilemmas in which an individualendangers the public health, or harms another party, or makesuse of scarce resources for which he cannot pay. But weshould not allow physicians to make such decisions. Nor shouldwe expect (much less require) them to do so.

Another objection is based on an argument for roledifferentiation, which asserts that some subjects of aphysician’s clinical work should not be considered patients(i.e., soldiers, prisoners, defendants in court proceedings,detainees, etc.). The potential for harm to these individuals is,therefore, not the physician’s responsibility.124 This is adangerous line of reasoning and brings to mind EdmundBurke’s well-known caution that good people doing nothingis all that evil requires to succeed. Physicians who determineddetainees’ “fitness” for torture under authoritarian regimes inthe 1970s and 1980s maintained that their work served statecampaigns against subversion and thus should not be judgedby the ethics of patient-physician relations.125 I propose thatwhen a physician brings medical skills and training to asituation, he ought to be bound by medical ethics.The Importance of Role in Varying ContextsFew, if any, would argue with the view that physicians shouldnot be involved in torture or human rights abuses and shouldbe compelled to report such activities when they occur. Butthe idea that physicians should not use their skills and trainingto support legitimate social purposes such as public safety,justice, or the appropriate rationing of limited resources is notas compelling. The profession’s social responsibility has led tophysicians’ participation in myriad settings, and not always forthe benefit of their (non-)patients. Physicians work in themilitary (where doctors treat wounded patient-soldiers forreturn to combat), in forensics (where doctors’ medicalevaluations often lead to adverse consequences for theirpatient-evaluees), and in research (where doctors’experimental “treatments” can have adverse consequenceswith little or no benefit to the individual patient-subject). Insome cases, the competing values weighed by the physicianare between the individual health and welfare of the patientand the relative health of the community. Vaccination, forinstance, which may pose a minimal risk to the individual, isjustified by the long-term collective benefit of highimmunization rates preventing epidemics.126 But, in othercases, a physician’s undivided commitment to patient wellbeing (at the level of either the individual or the population) ischallenged by decidedly nonmedically therapeutic duties, as

in the Singleton case. The physician’s role was to treat thepatient so that he would be executable.

The problem presents not when an individual choosesthe value of one set of obligations over another but when theindividual ignores the sacrifice of one to the other. Whenbehavior (be it personal or professional) that is potentiallycriticizable on moral grounds is blocked from such criticism byan appeal to the existence of the actor’s role, which, it isclaimed, makes the moral difference, the integrity of otherroles is not compromised, it is obliterated. And in eliminatingthe competing role(s), the actor eliminates those values thatmight otherwise be morally relevant, if not decisive, reasonsfor acting or not acting.Implementation: “What Men ‘Do’ Do”Hard cases make bad law. And hard-line rules make bad ethics.I am aware, in advocating for increased legal deference tophysicians’ professional responsibility and ethical norms, ofthe unfortunate tendency among theorists to give short shriftto implementation concerns—specifically, how, and how well,will a policy protecting physicians’ right to pursue life and healthto the exclusion of other social values be implemented?127 InSingleton’s unfortunate case, I can imagine little difficulty inimplementing a policy that safeguards physicians’ duty topursue health and life, even at the expense of other social orethical values. However, I am troubled by other possibleapplications of such a bright line rule (e.g., “Physicians’simultaneous responsibility to do no harm and to pursue healthand wellness outweighs any other responsibility”). In the caseof end-of-life care, for instance, I would favor a system ofshared decision-making in which a patient’s wish to refusetreatment, even if it will certainly hasten death, would behonored.128 I recognize that such a policy may unavoidablyinvolve physicians in allowing patients to effectively commitsuicide. My view here, though, is informed by my concernsabout implementation. I would ideally prefer to encouragephysicians to argue for life and pursue treatment even in themost dire of patients’ circumstances. But a default rule thatallows (or even requires) the substituted judgment of aphysician for a patient poses intolerable risks—not because ofthe insult to patient autonomy but because of the potentialfor abuse by physicians. Just as physicians may be drawn byunconscious aggressive impulses to hasten death, they mayreact as well in defense of those impulses by pursuing lifewhen it should not be artificially maintained.

The case of Donald Cowart may be illustrative incomparison to the Singleton case. In the summer of 1973,Donald “Dax” Cowart was critically injured in an explosion inwhich his father lost his life. Cowart was left blind and withthird-degree burns over more than sixty-five percent of hisbody. Despite his repeated protests, Cowart was forced toundergo excruciating medical treatments and surgeries formore than a year. He left treatment with severe disfigurement,the loss of his fingers, permanent hearing loss, and blindness.He went on to marry and to become a successful attorneyand remains steadfast in his position that treatment shouldhave been stopped when he, a competent adult, ordered thathe be allowed to leave the hospital and return home to diefrom his injuries. (He was repeatedly declared to be competentby a psychiatrist during this period.129)

In Cowart’s case, I believe that patient autonomyoutweighs a physician’s responsibility to avoid participation inpatients’ death. I want to be clear, though, that this view is aconcession to my theoretical wish that physicians never foregotheir pursuit of health and wellness (when possible), even inthe face of patient protest. I concede my theoretical positionbecause I am more concerned about the potential for abuse


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(cases in which patients cannot be saved or cured) and, moreimportantly, institutional incapacity to care appropriately forpatients forced to undergo treatment. Cowart presents, forme, a clear case in which the costs of requiring policy to deferto physicians’ credo (costs that include patients’ suffering andloss of liberty, and physicians’ involvement in hastening certaindeath) outweigh the potential benefits (possible recovery andrestoration to health for the patient, and protecting the integrityof the medical code). Singleton seems an equally clear case inwhich the known benefits (keeping physicians far from thepossibility of doing harm) outweigh the costs (postponingexecution of a prisoner, maintaining a prisoner in a state ofpsychosis, inter alia).

Between these two cases (Cowart and Singleton) liesanother for which implementation concerns are less clear:physician-assisted suicide. The cost of forcing those in painand near the end of their lives to suffer needlessly or to commitsuicide by other, more desperate, means must be weighedagainst the countervailing potential cost of physician abuseunder a policy allowing physician participation in suicide. Thisconflict strikes at the center of an internal role conflict forphysicians. Some who support physician-assisted suicide seethe potential for a new ethic of caring—one that encompassesassisted death as part of the professional role. But those well-meaning physicians who would euthanize their patients withcompassion are also often stressed, fatigued, and bewilderedby the new responsibility.130 This reaction would seem tosupport the above psychodynamic analysis, as well as the policyimplications. In other words, the anxiety felt even by thosewho support physician-assisted suicide may reveal importantdynamics of the physician-patient relationships that areprotective of both individuals’ health and welfare and oughtto be preserved.

Another implementation concern, however, cuts the otherway. An argument favoring individual moral reasoning whenconfronted with conflicting roles neglects the likelihood thatexternal factors will almost always determine the outcome.Yeats writes about the dangers of making a thing “subject toreason.”131 Gerald Postema takes Yeats’s observation to be acondemnation of moral philosophers’ inclination to “play” withprofessional ethics without full knowledge of the concretedetails.132 The physicians at Abu Ghraib were under attackdaily by enemies with whom the detainees were formerlyallied. Their safety was ensured by the same men and womenwho committed abuses and sought their aid. In thesecircumstances, the reasonable consideration of conflictingmoral values is an unreasonable expectation. Two conclusionscan follow: either no role requirement will be observed insuch situations, or only the strongest of them will.Conclusion: The Protection of RoleThe problem of role conflict is a familiar one in moral theory.I do not intend to resolve it here. I hope, however, to havehighlighted the tensions inherent in the inevitable conflictamong medicine’s various values (to individual patients, patientpopulations, society in general, etc.). I also hope to have madea case for more careful consideration of the consequencesthat follow from the degradation of the physician’s role, inparticular, or the sacrifice of it to competing duties. My ownview is that clinical fidelity to the individual patient should bea standard of medical responsibility that is extremely difficultto violate. For some years, the public conception, self-conception, and morale of the medical profession has beenon the decline.133 The productive transition from physicianpaternalism to patient autonomy has had the unfortunateconsequence of dispiriting practitioners and rendering themless able to keep faith with patients.134 Whether this transition

has prompted courts and policy makers to abandon their faithin physicians, or vice versa, is unclear.

Singleton v. Norris reflects the current disregard forphysicians’ role integrity, and the abuses at Abu Ghraib reflectthe potential consequences of further neglect. It remains,therefore, the responsibility of medical ethicists andprofessional organizations to convince and remind courts thatthere is more at stake in the protection of the physician’sprescribed role than mere professional exclusion, politicalautonomy, or social equity. What is at stake is, quite literally, amatter of life and death.

Endnotes1. Interview with Harold Koh, America and the Courts,

CSPAN, Federal Judicial Center, July 6, 1994.2. See Marc Rodwin, “Conflicts in Managed Care,” N Engl

J Med, 332 (1995): 640. See also Marsha Gold, et al. “ANational Survey of the Arrangements Managed CarePlans Make with Physicians,” N Engl J Med, 332 (1995):1678 (describing physicians’ financial and otherincentives to withhold services from patients).

3. U.S. Const. art. I, § 8, cl. 14.4. The separate community doctrine is also known as

the military necessity or nonreviewability doctrine.See generally Comment. “God, the Army, and JudicialReview: The In-service Conscientious Objector,” CalifL Rev, 56 (1968): 379, 379-85, 413-47.

5. “[I]n no other area has the [Supreme] Court accordedCongress greater deference.” Roskter v. Goldberg, 453U.S. 57, 64-65 (1981). See also Wallace v. Chappell,661 F.2d 729 (9th Cir. 1981) (rev’d on other grounds,462 U.S. 296 (1983)); (“[T]he Supreme Court hasvoiced a general objection to judges ‘running thearmy ’,” 661 F.2d 729, at 732 (quoting Orloff v.Willoughby, 345 U.S. 83, 93-94 (1953))); Joseph E.Broadus. “Don’t Ask, Don’t Tell, Yes: Don’t Second-Guess the Military,” A B A J, Oct. 1993, 54 (militarypolicy has always been upheld in the courts becausethe special needs of the military require that the courtsdefer to expert military opinion).

6. This justification reflects what Gerald Postema refersto as a “schizophrenic” view of role morality by whichone “simply dissociates the private personality fromthe…professional personality, regarding them asseparate, independent selves.” “Self-Image, Integrity,and Professional Responsibility.” In The Good Lawyer,edited by David Luban, 286-314 (1983); at 292.

7. See e.g., R. S. Downie, Roles and Values: AnIntroduction to Social Ethics, 121-145 (1971); RichardWasserstrom, Roles and Morality. In Luban, supra note6; Arthur Isak Applbaum, Ethics for Adversaries: TheMorality of Roles in Public and Professional Life (2001).

8. See M. Gregg Bloche and Jonathan Marks, “WhenDoctors Go to War,” N Engl J Med, 352 (2005): 3.

9. Ibid. (Reporting that U.S. medical personnel (1) failedto report evidence of detainee abuse and murder inIraq and Afghanistan, citing Steven Miles, “Abu Ghraib:Its Legacy for Military Medicine,” Lancet, 364 (2004):725; (2) shared health information, including patientrecords, with army units that planned interrogation,citing N. Lewis, “Red Cross Finds Detainee Abuse atGuantanamo,” NY Times, November 30, 2004; (3)participated in interrogation that was tantamount totorture, citing Ibid.; and (4) medics and “others”neglected the clinical needs of some detainees,Bloche and Marks, at 3). The Pentagon responded to


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the accusations of the International Committee ofthe Red Cross (ICRC) by denying allegations thatdetainee medical files were used to harm detainees,Ibid. See also, Robert Jay Lifton. “Doctors andTorture,” N Engl J Med, 351 (2004): 415; BenjaminMeier. “International Criminal Prosecution ofPhysicians: A Critique of Professors Annas andGrodin’s Proposed International Medical Tribunal,” AmJ L and Med, 30 (2004): 419.

10. “Doctors shall not countenance, condone, orparticipate in torture or other forms of degradingprocedures…in all situations, including armed conflictand civil strife.” World Medical AssociationDeclaration of Tokyo. Guidelines for Medical DoctorsConcerning Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment in Relation toDetention and Imprisonment. Adopted by the 29thWorld Medical Assembly Tokyo, Japan, October 1975.Though some of the activity also violated military laws,much of it did not. Physicians’ collaboration withmilitary intelligence teams and participation ininterrogation, for instance, is not illegal. Testimonyby Colonel Thomas M. Pappas, chief of militaryintelligence at Abu Ghraib, revealed physicians’systematic role in developing and executinginterrogation strategies for individual detainees forwhose care the same physicians were responsible.Testimony of Thomas Pappas, Commander, 205th MIBrigade, February 9, 2004 (obtained by the AmericanCivil Liberties Union in a lawsuit and posted to theWeb on October 21, 2004, at http://www.aclu.org/International/International.cfm?ID=16864&c=36).

11. See, e.g., Associated Press. “Soldier Gets Closer toAbuse Retrial,” NY Times, May 25, 2005 (the mostrecent covered event at the time of this writing,regarding the last of several trials to prosecute armyreservists involved in the abuse of Iraqi detainees atAbu Ghraib; see infra note 12).

12. Meier, supra note 9.13. Whether the actions of those reservists prosecuted

in connection with abuses at Abu Ghraib were theresult of explicit or implied orders from militaryleadership apparently remains an open question. Withthe possible exception of Spc. Charles Graner(demoted to private, serving ten years), however,most of those indicted for their involvement at AbuGhraib had little or no indication of previouswrongdoing in their records: Sgt. Javal Davis(sentenced to six months, reduced to private anddishonorably discharged), Spc. Roman Krol(sentenced to ten months and bad conduct discharge),Staff Sgt. Ivan L. “Chip” Frederick II (sentenced toeight years, reduced to private and dishonorablydischarged), Spc. Armin J. Cruz, Jr. (sentenced to eightmonths, reduced to private, and bad conductdischarge), Pvt. Jeremy Sivits: (sentenced to one year,bad conduct discharge), Spc. Megan Ambuhl(reduced to private and separated from Army), Spc.Sabrina D. Harman (sentenced to six months, badconduct discharge), Pvt. Lynndie England (awaitingretrial at the time of this writing for two counts ofconspiracy to maltreat detainees, four counts ofmaltreatment, and one count of committing anindecent act).

14. The trust of military soldiers in physicians is alsoimportant. The role of the soldier requires that soldiers

put their lives and safety at risk in all sorts of especiallydemanding ways. To be potentially subjected to harmby one’s own physicians may frustrate a soldier’swillingness to be potentially subjected to harm inwarfare. If physicians are known to cause harm toenemies for the sake of national security, they maybe perceived or known to cause harm to theircountrymen when called on by the interests ofnational security.

15. Though not an obvious claim, I take for granted theproposition that public trust in the medical professionis worth preserving. Indeed, in some cases,government regulation takes general and specificnotice of the importance of the doctor-patientrelationship and its impermeability. The Medicareantikickback statute (Pub. L. No. 92-603, 86 Stat. 1419(1972) (codified as amended 42 U.S.C. § 1320a-7b(b)(1994)) and related regulations, for example, wereenacted (and are currently enforced) to preserve thetraditional role of the physician “to providetreatments…in the best interests of the patient”(Office of Inspector General, 59 Fed. Reg. at 65,376).They may serve the additional function of curtailinginappropriate or over-utilization, but that is asecondary purpose (see, e.g., Thomas N. Bulleit, Jr. &Joan H. Krause, “Kickbacks, Courtesies or Cost-Effectiveness?: Application of the MedicareAntikickback Law to the Marketing and PromotionalPractices of Drug and Medical Device Manufacturers,”Food & Drug L J, (1999): 279. As Richard Wasserstromnotes, “It must…be shown that the particularrelationship and the particular kind and degree of[public] trust it promotes or engenders is, from thestandpoint of morality, worth preserving.” RichardWasserstrom, supra note 7, at 35. Two questions ariseout of Wasserstrom’s analysis. First, should a certainrole exist? And second, given that a certain role exists,should the occupant of that role do what the role, soconstituted, requires? This essay focuses more onthe second question than the first, which has beenargued convincingly in the affirmative. See generally,inter alia, Ezekial J. Emanuel & Nancy N. Dubler,“Preserving the Physician-Patient Relationship in theEra of Managed Care,” JAMA, 273 (1995): 323; RalphCranshaw et al. “Patient-Physician Covenant,” JAMA,273 (1995): 1553.

16. See, e.g., M. Lippman, “The Nazi Doctors Trial and theInternational Prohibition on Medical Involvement inTorture,” Loyola of Los Angeles Int’l & Comp L J, 15(1993): 395; T. Brennan & R. Kirschner. “Medical Ethicsand Human Rights Violations: The Iraqi Occupationof Kuwait and Its Aftermath,” Ann Intern Med, 117(1992): 78; J. Singh. “American Physicians and DualLoyalty Obligations in the ‘War on Terror’,” BMC MedEthics, 4 (2003): E4 (describing detainee abuse inapartheid South Africa); V. Jacopino, et al. “PhysicianComplicity in Misrepresentation and Omission inPostdetention Medical Examinations in Turkey,” JAMA,276 (1996): 396.

17. Rob Stafford, “Crazy Like a Fox?” Dateline NBC, NBCNews Transcripts, April 5, 1999.

18. Ibid.19. Ibid.20. Ibid.21. Singleton v. Norris, 319 F.3d 1018, 1020 (8th Cir., 2003).


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22. Singleton v. State, 274 Ark. 126, 128, 623 S.W.2d 180(Ark. 1981).

23. Michael R. Wickline. “Man on Death Row 20 YearsLoses Appeal,” Arkansas Democrat-Gazette (LittleRock, AR), January 25, 2002.

24. Singleton v. State, 623 S.W.2d 180 (Ark. 1981) (cert.denied Singleton v. Arkansas, 456 U.S. 938 (1982),Singleton v. Arkansas, 459 U.S. 882 (1982)), Singletonv. Lockhart, 871 F.2d 1395 (8th Cir. Ark. 1989) (habeascorpus proceeding), Singleton v. Lockhart, 962 F.2d1315 (8th Cir. Ark. 1992) (habeas corpus proceeding),Singleton v. Endell, 870 S.W.2d 742 (Ark. 1994).

25. Singleton v. Norris, 319 F.3d at 1020.26. Ibid., 1030.27. Singleton v. Norris, 319 F.3d 1018, 1021 (8th Cir., 2003).

Singleton had been medicated voluntarily duringmuch of his stay in prison prior to 1997. Psychotropicmedication was initially prescribed to alleviate anxietyand depression. Singleton did not present withpsychotic symptoms until 1987. Ibid. at 1030.

28. Ibid., 1018.29. Ibid., 1030.30. Ford v. Wainwright, 477 U.S. 399, 410 (1986).31. Atkins v. Virginia, 536 U.S. 304 (2002). The governing

standard for determining whether a prisoner iscompetent to be executed is that the EighthAmendment forbids the execution only of those whoare unaware of the punishment they are about tosuffer and why they are to suffer it. Ford, 477 U.S. at422 (Powell, J., concurring). The prohibition againstexecuting inmates who are mentally retarded,therefore, rests on the presumption that mentallyretarded individuals are incompetent to be executedbecause they are unaware of the punishment and itsjustification.

32. Singleton, 319 F.3d at 1023. Psychotic inmates areprecluded by the Eighth Amendment from executiononly if they are unaware of the punishment and itsjustification, supra note 31.

33. Singleton, 319 F.3d 1018.34. State v. Perry, 610 So.2d 746, 749 (La. 1992) (quoting 3

E. Coke, Institute 6 (1794)).35. Ford, 477 U.S. at 410. See Note, The Eighth Amendment

and the Execution of the Presently Incompetent, StanL Rev, 32 (1980): 765, 777, n. 58 (cited by the FordCourt, and suggesting no societal retributive interestin executing persons who have no comprehension ofwhy they have been singled out and stripped of theirrights to life).

36. See Ford, 477 U.S. at 406-10 (outlining rationales forexcluding insane individuals from execution); Collins,M. “Involuntarily Medicating CondemnedIncompetents for the Purpose of Rendering ThemSane and Thereby Subject to Execution,” Wash ULQ,70 (1992): 1229, 1236-41 (delineating rationales for banon execution as practical, religious and humane); M.Radelet & G. Barnard. “Ethics and the PsychiatricDetermination of Competency to Be Executed,” BullAm Acad Psychiatry & L, 14 (1986): 37, 39-42(discussing rationales for not executing insane); R.Schopp. “Wake Up and Die Right: The Rationale,Standard, and Jurisprudential Significance of theCompetency to Face Execution Requirement,” La LRev, 51 (1991): 995, 998-1010; D. Katz. Note, “Perry v.

Louisiana: Medical Ethics on Death Row - Is JudicialIntervention Warranted?” Geo J Legal Ethics, 4 (1991):707, 709-10; see also “‘Mindless Vengeance’:Medicating Charles Laverne Singleton So He Is SaneEnough to Be Executed Defies Constitutionality asWell as Logic and Ethics,” St. Petersburg Times, Feb.25, 2003. Available online at <http://www.sptimes.com/2003/02/25/newspf/Opinion/Mindlessvengeance.shtml> (“The U.S. SupremeCourt has said execution of the insane serves no causeof justice, and the public shares that opinion”).

37. This falls out of the Court’s longstandingpronouncement that “[t]he fundamental requisite ofdue process of law is the opportunity to be heard,”Grannis v. Ordean, 234 U.S. 385, 394 (1914).

38. See Schopp, supra note 36, at 1046. But see KurstenB. Hensl, Note: “Restored to Health to be Put to Death:Reconciling the Legal and Ethical Dilemmas ofMedicating to Execute in Singleton v. Norris,” Vill LRev, 49 (2004): 291 (arguing that state action to restorecompetency for the purpose of execution amountsto nothing more than standing someone up to kickhim down again).

39. Nor did Singleton’s defense not include a prioriConstitutional objections to the death penalty.

40. Ford, 477 U.S.at 410 (1986).41. Singleton v. Norris, 540 U.S. 832 (2003).42. Washington v. Harper, 494 U.S. 210, 221-22 (1990).43. Washington, 494 U.S. at 227.44. Riggins v. Nevada, 504 U.S. 127, 135 (1992).45. Sell v. United States, 539 U.S. 166 (2003).46. Sell, 539 U.S. 166.47. Singleton v. Norris, 319 F.3d at 1027.48. Ibid., 1024 (quoting United States v. Sell, 282 F.3d 560,

567 (8th Cir.)).49. See, e.g., Melinda S. Campbell, Comment: “Sell,

Singleton, and Forcible Medication—RunningRoughshod Over Liberty,” U Tol L Rev, 35 (2004): 691;Hensl, supra note 38; Brent W. Stricker. “Seeking anAnswer: Questioning the Validity of ForcibleMedication to Ensure Mental Competency of ThoseCondemned to Die,” McGeorge L Rev, 32 (2004): 317;Rebecca A. Miller-Rice. “The ‘Insane’ Contradictionof Singleton v. Norris: Forced Medication in a DeathRow Inmate’s Medical Interest Which Happens toFacilitate His Execution,” U Ark Little Rock L Rev, 22(2000): 659.

50. State v. Perry, 610 So.2d at 751.51. Four central principles (autonomy, beneficence,

nonmaleficence, and justice) have dominated thepublic health literature, though the two I havehighlighted have a more robust historical footing inmedical ethics. See passim, Tom L. Beauchamp &James F. Childress. Principles Of Biomedical Ethics,4th ed. (1994). Moreover, under these circumstances,the physician is re-cast in the role of punisher. Theprisoner does not consent to the drugs’ administration,and if the primary reason for their administration is tocarry out the condemned prisoner’s sentence (ratherthan, for example, the prisoner’s own medical benefitand the safety of fellow prisoners and prison staff),then the administration of the drug arguably becomespart of the sentence. It is no doubt a harm (at thevery least a dignitary harm) to the patient. And if it is


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(a) a harm, and (b) part of the prisoner’s sentence, itconstitutes punishment—punishment to which nocourt lawfully sentenced the prisoner.

52. U. S. Const., Amdt. 5 (Federal Government may not“deprive[e]” any person of “liberty…without dueprocess of law”).

53. The physicians treating Singleton may indeed havehad an exercisable right not to treat him against hiswishes, just as physicians are generally protected fromprofessional activity that violates personal moral orreligious values (see infra note 77 on conscienceclauses). I am proposing, instead, that physiciansshould have an obligation not to forcibly treat patientsunder these circumstances that, while not absolute,ought to be afforded greater deference by law andpolicy.

54. As I have already noted, Singleton did not presentphysicians’ professional obligation as a defense onhis behalf.

55. Washington, 494 U. S. at 221 (1990).56. Ibid., 236.57. Riggins, 504 US 127.58. Riggins, 504 U.S. at 134-135.59. Ibid., 135.60. Ibid.61. Ibid.62. Julia C. Spring. “Singleton’s Story: Choosing between

Psychosis and Execution,” Hastings Center Report, 35(2005): 30.

63. Singleton, 319 F3d, at 1037.64. American Medical Association, Code of Medical

Ethics; American Psychiatric Association, EthicalCode.

65. One may further question what is meant by“treatment,” and, specifically, what constitutes adoctor-patient relationship. What are the duties of aphysician to an individual he sees for a forensicevaluation? It would be odd to presume that in thecontext of forensic evaluation confidentiality wouldbe protected, but informed consent might still berequired. In Singleton’s case, there was no doubtamong the parties that a doctor-patient relationshipexisted, though the law avoids defining the specificways in which the scope of a physician’s duty isnarrowed in the prison setting.

66. The courts have employed a “double effect” argumentby focusing on whether treating physicians everintended to medicate Singleton for the purpose ofexecuting him. In one of the district court’s denials ofa petition for habeas corpus, the court reasoned thatno evidence could be found “that the actions anddecisions of the medical personnel involved [inforcibly medicating Singleton] were in any degreemotivated by the desire, purpose or intent to makeMr. Singleton competent so that he could beexecuted,” Singleton, 319 F.3d at 1021 (quoting thedistrict court, then reversed by the appellate court,which granted a stay of execution). This reasoning isas specious as the kind employed as a defense byphysicians involved in torture. A physician called uponto evaluate a military prisoner for the purpose ofinterrogation can easily claim that his intent wasunrelated to the interrogation or torture. Similarly,treating prisoners who have been tortured, without

reporting the suspected abuse, may be justifiedbecause such a responsibility would fall outside thedirect scope of the physician’s duties as proposed.These claims must fail if physicians are to be heldaccountable to any reasonable professional ethicalstandard.

67. Because Singleton was tried for his crimes, convicted,and sentenced, to claim a right not to be forciblymedicated because it will result in the ver ypunishment to which he has been legally and ethicallysentenced (again, putting aside one’s potentialconcerns about the death penalty) seems illogical,unreasonable, and unethical. If we accept, for thepurposes of this argument, the justice of the legalproceedings and their ultimate sentence, we arecompelled to evaluate Singleton’s desire not to betreated on the same core grounds as anyone else’sdesire not to be treated. We should furthermore notbe swayed by the result of our decision because wemay believe that result to be unfortunate. In otherwords, Singleton’s execution should not be viewedas unfortunate or undesirable, and our sense of justicerequires us to avoid making any liberty claim againstforcible medical treatment simply to avoid what wemust accept as a fair and deserved punishment.Therefore, the realm of potential ethical challengesposed by the first question, regarding the threat toSingleton’s liberty by forced medication, seems ratherlimited. In a sense, the competent Singleton hasmade himself inaccessible and has left in his place aninsufficient proxy (in the psychotic Singleton). It maybe unreasonable to suggest, therefore, that Singletonis being unfairly harmed by medication that willrestore his sanity. In this view, it is Singleton whosacrifices his own autonomy and liberty interestswhen he sacrifices sanity for psychosis. Of course,psychosis is not voluntarily acquired, but the decisionto remain psychotic is voluntary when it is made by apatient with full (if temporary) competence.

68. Bassanio’s bootless plea to Portia in the trial scene,Merchant of Venice, Act IV, sc.1, l. 212.

69. 551 P.2d 334 (1976).70. Ibid., 340. The facts of Tarasoff were as follows:

Poddar, a University of California graduate student,told his therapist that he intended to kill TatianaTarasoff, a young woman whom he had previouslydated. Ibid., 341. The therapist consulted with hissupervisor and then contacted the campus police whoquestioned Poddar and released him once hepromised to stay away from Ms. Tarasoff. Ibid. Twomonths later, Poddar went to Ms. Tarasoff ’s homeand killed her. Ibid., 339. Subsequently, her parentsfiled suit on a variety of tort theories, including thefailure of Poddar’s therapists to warn Ms. Tarasoff ’sparents that Poddar was a “grave danger” to theirdaughter. Ibid., 340-41.

71. Ibid., 342. In its second decision in the case, theCalifornia Supreme Court found that a “duty toprotect,” rather than a “duty to warn” exists:

when a therapist determines, or pursuant tothe standards of his profession shoulddetermine, that his patient presents a seriousdanger of violence to another, he incurs anobligation to use reasonable care to protectthe intended victim against such danger. Thedischarge of this duty may require the


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therapist to take one or more of varioussteps, depending upon the nature of thecase. Thus it may call for him to warn theintended victim or others likely to apprisethe victim of the danger, to notify the police,or to take whatever other steps are reasonablynecessary under the circumstances. Ibid.,340.

72. See Beauchamp, T. In Beauchamp, T. and Walters, L.Contemporary Issues in Bioethics, 6th Edition (CA:Wadsworth Publishers, 1999), 3.

73. Tarasoff, 551 P.2d 332.74. Beauchamp, T. and Walters, L., supra note 72, 30.75. Ibid.76. W. D. ROSS. The Right and the Good (1930), 30-32.77. Of course, physicians are also citizens whose

professional obligation is one of many. A physicianmay feel compelled by certain moral and/or religiousobligations, in which case she may be able to legallyavail herself of conscience clause protection. See 42U.S.C. §300a-7 (2002) (known as the “ChurchAmendment”): Indiana Code §16-34-1-4 (2002); KYRev. Stat. Ann. §311.800 (2001); VA Code Ann. §18.2-75 (2002). See also West, J. Andrew, “Defining theLimits of Conscientious Objection in Health Care,”APA Newsletter on Philosophy and Law, Fall 2005. Butin balancing her obligations to patients and herconflicting moral and/or religious obligations, aphysician ought to be required to refer patients inneed to other physicians. While a physician may feelprecluded from rendering certain types of care, andmay even feel compelled to counsel a patient againstwhat she believes to be immoral actions, she oughtto assist her patient in finding appropriate care, solong as it is within the boundaries of standard practiceamong her colleagues. A physician who objects toabortion on moral or religious grounds oughtnonetheless to assist her patient in finding a capablephysician elsewhere. To do otherwise would be totake advantage of a patient’s dependency. Somephysicians may feel compelled by other duties tocounsel patients against what they believe to beimmoral actions (e.g., abortion, risky sexual behavior,unnecessar y or cosmetic medical procedures,refusing to donate blood, bone marrow, or organs toa family member in need), but their influence shouldextend no further than that counsel. The enormousinfluence physicians have over their patients (byvirtue of the entrenched and implicit norms of thedoctor-patient relationship) warrants caution. Aphysician’s influence may be used appropriately incommunicating medical advice—as that is the taskfor which the physician is trained and qualified and(more importantly) for which the patient seeks aphysician out. Offering moral guidance is a primaryduty of a clergyperson, not a physician. Again, this isin part because of a clergyperson’s experience andtraining in both ethical decision-making andcounseling congregants on moral issues, but, moreimportantly, the clergyperson’s influence in that area(ethics, religion morality) is implicitly recognized whenhis or her counsel is sought by a congregant orparishioner.

78. It may be argued what constituted treatment. Viewedin the context of professional responsibility, I find atreatment relationship when a medical professional

brings his or her medical skills and talents to bear. Aphysician is not compelled to do so—doctors are freeto contract at will. Nor are they compelled to act,always, as physicians. (A witness to a crime, forinstance, who happens to be a physician, is under noobligation other than those that would attach tononphysicians.) But if they bring medical skills, whichthey are licensed by the state to use, to a task, theyshould be responsible to at least the core values ofthe profession. Health organizations as well asprofessional medical organizations generally interprettreatment and physician responsibility for carebroadly. In the case of domestic violence, forinstance, the physician’s duty is often read to includepreserving health not just in the narrow context ofthe patient’s clinical presentation but in his or heractivity beyond the observation room (see, e.g.,Council on Ethical and Judicial Affairs, AmericanMedical Association, “Physicians and DomesticViolence, Ethical Considerations,” JAMA, 267 (1992):3190.)

79. See Paul Appellbaum. “The Parable of the ForensicPsychiatrist: Ethics and the Problem of Doing Harm,”Int’l J L & Psychiatry, 13 (1990): 249, 252 (using theexample of a forensic psychiatrist called upon by theprosecution in a criminal proceeding to presentevidence concerning an individual’s defense of notguilty by reason of insanity.) Appellbaum argues thatthe doctor is not involved in a healing capacity whileoffering testimony and, therefore, has no professionalduty to preserve the health of a sometime patient.

80. See supra note 77.81. Physicians are often called upon by courts to treat

individuals, in which case a doctor-patientrelationship does exist, and all values that normallyattach to the relationship (eg., confidentiality) shouldbe respected. See, e.g., Pettus v. Cole, 49 Cal. App.4th402, (1996) (finding a physician’s duty of confidentialityto be inviolable beyond description of “functionallimitations” in response to an employee’s request fordisability leave).

82. The research context, as well as that of forensicevaluations, provides difficult and useful cases. Inboth, though a doctor-patient relationship isunderstood not to exist, it is helpful to consider whichresponsibilities remain (e.g., informed consent, dono harm) and which do not (e.g., confidentiality).The military context provides a third and moredifficult example. In this case, as with manyprompted by the military, extraordinary deferencehas historically been granted. Once an individual’sbody is not her own (which must be the case eitherwhen an individual voluntarily joins the military, orwhen she is drafted), individual autonomy has beenso seriously compromised that patient autonomy canno longer be plausibly respected. Following the samereasoning, a physician’s autonomy may be no morerobust than a patient’s, if they are both soldiers ofthe state. It may, then, only be professional autonomy,granted by states through the licensing of medicalpractice, that preserves important social and ethicalobligations in the military context.

83. Singleton’s Eighth Circuit appeal was not a challengeto the validity of his conviction or sentence but onlythe manner in which it was to be carried out.


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84. Arguments against physician-assisted suicide that relyon a professional medical judgment that physician-assisted suicide is not in the patient’s medical bestinterest can now be rebutted.

85. See, e.g., United States v. Bailey, 444 U.S. 394, 403-406;Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261,278-280; Ibid., 287-88 (O’Connor, J., concurring) Vaccov. Quill, 521 U.S. 793, 793 (U.S., 1997); George Annas.“The Bell Tolls for a Constitutional Right to Physician-Assisted Suicide,” N Engl J Med, 337 (1997): 1098.Palliative care, in these cases and their precedent,stands in for euthanasia, all seemingly in deferenceto the physician’s code. Not so in Singleton’s case.

86. See, e.g., Medicare antikickback statute, supra note15. Courts have often recognized legal duties outsideof the doctor-patient relationship that attach by virtueof a particular relationship, such as one defined bythe status of an individual (Craig v. State, 220 Md. 590(1959)), or by the particular status relationship(Annot., 10 A.L.R. 1137 (1921). (parent to child);Territory v. Manton, 19 P. 387 (husband to wife); Reginav. Smith, 8 Carr. & P. 153 (Eng. 1837) (master toapprentice); United States v. Knowles, 26 Fed.Cas. 800(No. 15,540) (ship’s master to crew and passengers);cf. State v. Reitze, 86 N.J.L. 407, 92 A. 576 (innkeeperto inebriated customers)), or by contractualrelationship (Regina v. Smith; Rex v. Ellen Jones,supra; 19 Cox Crim.Cas. 678; People v. Montecino, 152P.2d 5., or where one has “voluntarily assumed thecare of another and so secluded the helpless personas to prevent others from rendering aid” (Reg. v.Nicholls, 13 Cox Crim.Cas. 75; Rex v. Ellen Jones, supra;1 Wharton, Criminal Law, § 455 (12th Ed.). Cf. Rex v.Gibbins and Proctor, 13 Crim.App.R. 134 (Eng. 1918);State v. Noakes, 40 A. 249). See also Jones v. U.S., 308F.2d 307, 310 (1962).

87. In other words, rule utilitarianism is to be favored inthis case over act utilitarianism.

88. L. Edelstein, The Hippocratic Oath 3 (1943).89. See L. Hasday. “The Hippocratic Oath as Literary Text:

A Dialogue between Law and Medicine,” Yale J HealthPol’y L & Ethics, 2: 299; See also Krischer v. McIver, 697So. 2d 97 (FL, 1997) (on Florida state’s interestsoutweighing patients’ desires for physician-assistedsuicide).

90. Value of Life Committee. “The 1995 Restatement ofthe Oath of Hippocrates, circa 400 BC.” NationalCatholic Bioethics Center, Boston, MA 02135. Availableonline at <http://www.ncbcenter.org>.

91. Littré Vo. IV: 624 cited in Steven Miles. The HippocraticOath and Medical Ethics. 73 (2004); A. MacIntyre.Whose Justice? Whose Rationality? (1988): 42-68;Aristophanes. Plutus, translated by B Rogers. Vol. III(1988): 407-8. In Miles, 73.

92. See, e.g., Compassion in Dying v. Washington, 79 F.3d790, 829 (9th Cir., 1996).

93. See Beauchamp & Childress, supra note 51.94. Epidemics I:XI cited in Ibid. at 143. “The commonly

cited Jones translation follows Littré and goes: ‘As todiseases, make a habit of two things—to help, or atleast do no harm’ (Hippocrates [1923a]). Jonsen notesthat the Greek text does not contain the words ‘atleast’. Jonsen, AR. ‘Do No Harm.; Ann Int Med, 1978;88:827-32.” Ibid., 147, n.23.

95. Ibid., 144.

96. Thucydides. The Landmark Thucydides: AComprehensive Guide to the Peloponnesian War,edited by RB Strassler. (1996) at 6.14 cited in ibid.,144.

97. Ibid., 144.98. For an exhaustive account of the four-principles

(autonomy, beneficence, nonmaleficence, andjustice) approach to medical ethics, see RaananGillon, Principles of Health Care Ethics, pt. 1 (1994).

99. See, eg., British Medical Association. MedicineBetrayed: The Participation of Doctors in HumanRights Abuses (1982).

100. American Medical Association Council on Ethical andJudicial Affairs. “Physician Participation in CapitalPunishment,” JAMA, 270 (1992): 365.

101. Robert Burt, Death Is That Man Taking Names, (2002):87-105.

102. Robert Burt. “The Medical Futility Debate: PatientChoice, Physician Obligation, and End-Of-Life Care,”J of Pall Med, 5 (2002): 249, 252-53.

103. See, e.g., Michael Davis & Andrew Stark, eds., Conflictof Interest in the Professions (2001).

104. See Frederick Hafferty, Into the Valley: Death and theSocialization of Medical Students (1991); Robert Burt,Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations (1979).

105. See ibid. See also Burt, supra note 101; Jay Katz, TheSilent World of Doctor and Patient (1986, 2002).

106. Hafferty, supra note 104.107. Ibid.108. Burt, supra note 101, 92.109. Hafferty, supra note, 104.110. Ibid.111. Freud, A. “The Doctor-Patient Relationship.” In Jay

Katz, Experimentation with Human Beings (1972), 643.112. Henry Brooks Adam.113. See, e.g., Stanley Milgram, Obedience to Authority

(1983); Philip G. Zimbardo, et al., The Psychology ofAttitude Change and Social Influence (1991); RobertCialdini, Influence: The Psychology of Persuasion(2000).

114. Stanley Milgram. “Behavioral Study of Obedience,” JAbnorm & Soc Psych, 67 (1963): 371. Stanley Milgramconducted a study at Yale University and in Branford,New Haven, focusing on the conflict betweenobedience to authority and personal conscience. Heexamined justifications for acts of genocide offeredby those accused at the World War II, Nuremberg WarCriminal trials. In the experiment, Milgram paidsubjects to participate in what they thought was anexperiment about memory. “Teachers” (who wereactually the unknowing subjects of the experiment)were asked to administer an electric shock ofincreasing intensity to a “learner” for each mistakehe made during the experiment. When subjects askedwhether increased shocks should be given, they wereencouraged to continue. Sixty percent of the“teachers” obeyed orders to punish the learner tothe very end of the 450-volt scale. (The last threevoltage levels were marked “X,” “XX,” and “XXX” andwere administered after the “learner” had screamedout in protest, complained of a heart condition, andeventually gone silent. In advance of the study, fortypsychiatrists were asked how many subjects might


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administer all 450 volts. The estimate was onepercent. No subject stopped before reaching 300volts.) Ibid.

115. In the Milgram study, the rules of “the experiment”were clear but not of the real subjects’ obligations toeither the false experiment or the real study.

116. Craig Haney & Philip Zimbardo. “The Socialization intoCriminality: On Becoming a Prisoner and a Guard.” InLaw, Justice, and the Individual in Society:Psychological and Legal Issues, edited by Tapp &Levine, (1977), 198. In the summer of 1971, PhilipZimbardo of Stanford University led an incredibleexperiment using the psychology building on campusas a makeshift prison. He and two graduate assistantsassembled a group of college-aged volunteers, sortedthem for emotional stability, and randomly assignedthem to positions of either guard or prisoner. Within afew days, the guards assumed the roles of guards andthe prisoners started to display the attributes of “first-timers” at real prisons. Within six days, the experimenthad to be terminated because the situation became“too real” and too intense, with several prisonershaving to be dismissed because of psychologicaltrauma.

117. Ibid., 207.118. Ibid., 209.119. Plato, Republic I, 335c.120. One need only look to the psychological evaluations

of the Nazis to remember the ease with whichmonstrous actions can be disassociated from personalmorality, if protected by a defined role. See, e.g.,Hannah Arendt, Thinking and Moral Considerations:A Lecture, Soc. Res., 417 (1971) (describing, forexample, the ease and disunity of personality withwhich Adolph Eichmann carried out his political andmilitar y obligations as he saw them); LeonGoldensohn & Robert Gellately, eds., The NurembergInterviews (2004). But see Postema, supra note 6(discussing the Socratic observation of man’s inherentneed for unity of self and the consequent paint thatcomes from psychological disunity caused by moralconflict).

121. Richard Wasserstrom, supra note 7, 32.122. Bloche and Marks, supra note 8.123. Katz, supra note 111, 7.124. Various arguments along these lines have appeared

in varying contexts, some notorious in the recenthistory of medicine. See, e.g., Robert Proctor, RacialHygiene (1988). See also Christian Pross & Aly Götz,The Value of the Human Being: Medicine in Germany1918-1945 (1991).

125. M. Gregg Bloche. “Psychiatry, Capital Punishment, andthe Purposes of Medicine,” Int J Law & Psych, 16(1993): 301.

126. Paul E. Fine. “Herd Immunity,” Epidem Rev, 15 (1993):265; see also K. R. Stratton, et al. “Adverse EventsAssociated with Childhood Vaccines Other thanPertussis and Rubella,” JAMA, 271 (1994): 1602; seealso Jacobson v. Commonwealth of Massachusetts,197 U.S. 11 (1905) (upholding the Constitutionality ofa legislature choosing between medical argumentson behalf of individuals and medical arguments onbehalf of the public population).

127. Theodore R. Marmor, Understanding Health CareReform (1994), pp. 215-224.

128. The case of Dax Cowart, now famous in the bioethicsliterature, is an example of an unfortunate situationin which I believe a patient’s right to refuse lifesustaining treatment ought to be protected (thoughnot exclusively, and without much conversation andcounseling) even if treating physicians are requiredto forego their pursuit of health and life. See LonnieD. Kliever, ed., Dax’s Case: Essays in Medical Ethicsand Human Meaning (1989).

129. Ibid.130. Roger S. Magnusson. “‘Underground Euthanasia’ and

the Harm Minimization Debate,” J L Med & Ethics, 32(2004): 486. Magnusson actually argues for a policy oflegalization or greater regulation of physician-assistedsuicide because of the harm that undergroundeuthanasia creates. As a matter of policy foreuthanasia, I agree with his conclusions, but I note hisobservations about physicians’ reactions to assisted-suicide for the purposes of this discussion insofar asthey reveal the particular conflicts outlined above.

131. “Once one makes a thing subject to reason, asdistinguished from impulse, one plays with it, even ifit is a very serious thing. I am more ashamed becauseof things I have played with in life than of any otherthing.” W. B. Yeats, in an unsent letter dated 1910, InRichard Ellmann, Years: The Man and the Masks(1948), p. 175, cited in Postema, supra note 6, 286.

132. Ibid.133. M. Gregg Bloche. “Cutting Waste and Keeping Faith,”

Ann Intern Med, 128 (1998): 688.134. M. Gregg Bloche. “Clinical Loyalties and the Social

Purposes of Medicine,” JAMA, 281 (1999): 268.

Defining the Limits of ConscientiousObjection in Health Care

J. Andrew West

Introduction: The Controversy Over Conscience ClausesThe practice of conscientious objection in the United Statesenjoys a respectable pedigree in both the legislatures and thecourts.1 While the right to conscientious objection was initiallyrecognized in the context of military service, the reproductiverights debates of the 1970s opened the door for the rights ofconscience to become a permanent fixture of the health carelandscape. For thirty years, the need to recognize health careproviders’ right to conscientious objection has materialized inso-called “conscience clauses.”2 Conscience clauses areprovisions in laws, regulations, and other governing instrumentsthat permit medical providers and facilities to refuse to provideservices to which they are morally or religiously opposed. Theseclauses protect providers by making them immune from civiland criminal liability for damages that result from theirconscientious objection.

The present controversy over conscience clauses doesnot center on the question of whether we should have themat all. The medical profession has long recognized thatconscience clauses of some sort are desirable. Rather, medicalprofessionals and legislators have focused on the followingquestion: What are the proper limits of conscientious objectionin health care?


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Answers to this question have ranged from clausespractically unlimited in scope to others that enumerate specificprocedures to which care providers may object. In July 2004,Mississippi passed an example of the former, which allows anyclass of health care worker to refuse “to counsel, advise,provide, perform, assist in, refer for, admit for purposes ofproviding, or participate in providing, any health care serviceor any form of such service.”3 In contrast, a 2003 Wisconsin bill,ultimately vetoed by Governor Jim Doyle, tried to limit theright to conscientious objection to six procedures.4

I will argue that we should prefer narrow conscienceclauses because they (1) respect patients’ right to informedconsent and (2) reduce risks to vulnerable populations. I willthen propose and defend an example of what a narrowconscience clause might look like. The clause I propose allows:

(1) any person

(2) directly involved in providing

(3) nonemergency medical treatment or service

(4) to refuse to provide the treatment or service inquestion, so long as the person

(5) objects on moral or religious grounds and

(6) cooperates in the transfer or referral of the patientto a willing provider.

Before I turn to these arguments, a brief overview of thegenesis and evolution of conscience clauses in medicine is inorder.I. Conscience Clauses in American and International HealthCareA. The Genesis of Conscience ClausesJust six months after the Supreme Court’s 1973 Roe v. Wadedecision, which legalized abortion nationwide, Congresspassed the Church Amendment. Introduced by Senator FrankChurch (R-ID), this amendment was the first conscience clauseto become federal law. It stated that no “individual” or “entity”receiving certain federal funds would be required to performa sterilization procedure or abortion, or make its facilitiesavailable for those procedures, if doing so “would be contraryto religious beliefs or moral convictions.”5

Opposition to the Church Amendment was minimal. Tothe extent that the amendment protected individual rights, itseemed reasonable to most pro-choice advocates. After all,as writer Emily Bass notes, “The abortion debate had beenwaged on the battlegrounds of conscience and the rights ofwomen to make their own decisions.”6 Taking into accountthe personal choice of the providers being asked to performabortions seemed fair, especially in an era when medical carewas largely provided through private practices.7 On a practicallevel, pro-choice groups, encouraged by Roe, focused insteadon establishing a network of women’s clinics across the nation.8

B. The Evolution of Conscience ClausesJudging from the pace at which other conscience laws werepassed at the state level after the Church Amendment, theystruck a responsive chord. By the end of 1974 more than halfthe states had adopted conscience clauses, and by 1978 nearlyall states had done so.9

Although the conscience clauses enacted in the wake ofRoe were almost exclusively concerned with abortion, theydiffered on matters of individual versus institutional conscienceand duties to provide referrals or information to those seekingabortions. According to research by Rachel Benson Gold of

The Allan Guttmacher Institute, forty-six states institutedabortion-related clauses that applied to individuals, and forty-two adopted clauses that also applied to medical facilities.10

Nine clauses allowed individuals to refuse to some extent toprovide abortion-related advice or referral, while six allowedfacilities to refuse to provide either advice or referral. Finally,thirteen states passed legislation allowing individuals orfacilities to withhold contraceptive services and information,while eleven states allowed individuals or facilities to refuseto perform sterilizations and provide information.11

What is surprising about this legislation is that very few ofthese state laws required the individual or facility claiming aconscientious exemption to inform anyone of this fact. Of theforty-six clauses allowing individuals to decline to performabortions, only eighteen required any sort of written notice,and in most cases this was only notification of their employeror hospital. Only three clauses required the physician to notifythe patient, and only seven of the forty-two state laws allowingfacilities to refuse to perform abortions required any form ofpublic notice.12

Though the initial round of laws passed after Roe v. Wadesowed the seeds of the current conflict over conscienceclauses, the issue lay dormant for over a decade. Not until the1990s did the rapid expansion of “managed care” breathe newlife into the debate. At that time, medical corporations beganto replace the traditional private practices that once dominatedthe marketplace. As policy analyst Rachel Benson Goldobserves, this transfer of power “blurred the once-sharp linebetween the providers and the payers of care, leading to anarray of questions about which entities should appropriatelybe entitled to claim a conscientious objection to providing‘sensitive’ medical services.”13 Furthermore, competitionamong health care providers “led to a wave of consolidationsand mergers between religious and secular institutions,” thusraising concerns about “the dominance of one organization’sreligious dictates over those of a previously secularorganization.”14

The changes in the health care system brought about bythe managed care revolution have led states to pass broaderconscience provisions. These new laws differ from theirpredecessors in two important respects. First, the new lawsgo beyond abortion and sterilization, with many of themapplying to any health service to which an individual orinstitution might object. Second, they take into account thechanges in the health care landscape by enlarging the categoryof entities permitted to claim a conscientious objection. Theprotected entities now include not only health care providers(both individuals and facilities) but also insurers and corporatepayers, such as health plans. Advocates of broad conscienceclauses argue that expanding the class of protected entities isnecessary to respect the corporate “conscience” of institutions,while opponents regard such an expansion as a dangerousmove that allows insurers to opt out of paying for any healthcare service at will under the guise of conscience.15

The most recent development in federal legislationoccurred in December 2004 when President Bush signed intolaw the 2005 Labor, Health and Human Services EducationAppropriations Bill. The bill contained the Hyde/WeldonConscience Protection Amendment, which prohibits thedisbursement of federal health and human services funds tofederal agencies and programs and state and localgovernments that discriminate against health care entities thatrefuse to provide, pay for, or refer for abortions. The Hyde/Weldon Amendment is another example of consciencelegislation that is concerned primarily with abortion. It alsoshows how legislators have expanded the range of protected


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entities. For instance, a health care entity is defined broadlyto include any “health care professional” and “any other kindof health care facility, organization, or plan.”16

C. Conscience Clauses AbroadOutside the United States, a number of other nations havelaws protecting the rights of conscience in health care. TheProtection of Conscience Project, a Canadian-basedorganization that tracks international conscience legislation,points to conscience clauses in Australia, Ireland, New Zealand,Slovenia, and the United Kingdom.17 Like the early U.S. statelaws, international conscience laws focus almost exclusivelyon abortion, though some differ on the duty to refer or inform.In Australia, for example, five of the eight states offer protectionto conscientious objectors, though four of those states appearonly to have abortion-specific laws dating to the 1920s and1930s. In 1995, the state of Victoria extended conscientiousobjection to “research involving the use of gametes, zygotesor embryos.”18 New Zealand’s legislation applies only toabortion and contraception but does include the right to refuseto “offer or give any advice relating to contraception.” InIreland, practitioners can object to family planning servicesand prescriptions for contraceptives and are not obligated togive any information.19

Despite the relatively small number of foreign lawsaddressing conscientious objection in health care, it would bewrong to assume either a lack of controversy on the matter ora lack of interest on the part of lawmakers. Canadianlawmakers, for instance, have tried unsuccessfully since 1994to pass conscience legislation on both the federal and provinciallevels.20

II. Arguments in Favor of Conscience ClausesAs earlier noted, controversy over conscience clauses has rarelyfocused on the question of whether they should exist at all.For several reasons, this should not be surprising. U.S. courtshad recognized the right to conscientious objection in thearmed forces well before the reproductive rights movementgained steam; therefore, the practice was not foreign toAmericans when medical practitioners began to appropriate itin the context of abortion and sterilization.

Conscience clauses also accord with our moral intuitionsabout not forcing others to be complicit in what they believeto be immoral behavior. Moreover, this intuition is a part ofwhat Ken Baum and Julie Cantor, authors of a recent NewEngland Journal of Medicine article, have called the“quintessentially American custom of respect for conscience,”and what former Supreme Court Chief Justice Charles EvansHughes called a “happy tradition.”21 Baum and Cantor alsoclaim that “the right to refuse to participate in acts that conflictwith personal, ethical, moral, or religious convictions isaccepted as an essential element of democratic society.”22

Other commentators cite the toleration of moral diversity as a“first principle” in “post-industrial, democratic societies,” whichlack “any common moral ground” for “adjudication of ourdifferences.”23 Lynn Wardle, a law professor who has writtenon the protection of conscience in health care, calls protectionfor rights of conscience a “significant contemporary Americanvalue” for which there is “overwhelming evidence” in the Billof Rights and U.S. case law.24

Finally, we live in a society that does not requireprofessionals to abandon their morals as a condition ofemployment. Otherwise, as Wardle observes, “health carelicenses would be little more than badges of moral slavery.”25

Health care professionals, such as physicians and pharmacists,complete graduate programs in their area of expertise, obtainlicenses to practice their trade, and join professional

organizations with their own codes of ethics; they “are notautomatons completing tasks.”26

There are, of course, many other reasons why we seelittle, if any, opposition to the existence of conscience clausesas such. One line of argument, beyond the scope of this paper,is that the practice of medicine is a “moral enterprise,” and,therefore, physicians should be allowed to integrate their ownmoral and religious convictions with their provision of publicgoods.27 My purpose here, however, has not been to presenta comprehensive defense of conscience clauses but, rather,to survey some of the reasons why the idea of incorporatingconscience laws into health care has, in principle, beenregarded as unobjectionable.III. Possible Responses to the ControversyThere are three possible responses to the question ofconscientious objection in health care: no right to object, anunlimited right to object, or a limited right to object.28

The first two responses are unjustifiable.A. No Right to ObjectComplete rejection of a right to conscientious objection wouldbe problematic on several grounds. First, from an ethicalperspective, creating an environment in which institutionsforbid their employees to exercise personal moral judgmentof any kind on pain of civil and criminal liability or licenserevocation is surely a recipe for moral bankruptcy. Many entermedicine because they see it as a profession with a moralpurpose, such as relieving suffering, helping those in need, orsaving lives. Since a concern for morals has led many peopleinto medicine in the first place, making medicine a domain inwhich individual moral judgments are impermissible will drivemany of these people away from medicine and will discourageothers from entering the profession. Second, given thelongstanding legal precedents for the rights of conscience inhealth care settings, it is unlikely that any law categoricallyforbidding conscientious objection would withstand a legalchallenge.29 Third, if legislative protection for conscientiousobjectors did not exist, or was eliminated by a drastic changein law, sectarian health care providers would face a major crisis.Many Catholic providers, for example, would likely shut down,or at least suspend, enough operations to avoid conflicts ofconscience—a threatening specter given that Catholichospitals constitute the largest group of nonprofit health careproviders in the United States, accounting for fifteen percentof the nation’s hospitals.30

B. An Unlimited Right to ObjectAn unlimited right to object is equally problematic. This rightis precluded by federal law. The Emergency Medical Treatmentand Labor Act (EMTALA) states:

If any individual…comes to a hospital and the hospitaldetermines that the individual has an emergencymedical condition, the hospital must provide either—(a) within the staff and facilities available at thehospital, for such further medical examination andsuch treatment as may be required to stabilize themedical condition, or (b) for transfer of the individualto another medical facility in accordance withsubsection (c) of this section.31

Subsection (c) on transfers lacks any mention of conscientiousobjection as a justification for transfer. Since a truly unlimitedright to object would necessarily extend to emergencytreatment, EMTALA is a formidable statutory obstacle for theproponent of unlimited conscience clauses. Another problem,as we will see later, is the possibility that prejudiced healthcare workers might hide behind an unlimited conscience


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clause as they discriminate against patients who arehomosexual or belong to a racial minority.

These extreme positions might deserve more attention ifanyone was advocating them in the current literature onconscience clauses. That is not the case. We are thus left withthe third alternative: a limited right to object. The difficulty ofarticulating a principled clause that falls somewhere in thisvast middle ground is the driving force behind the currentdebate.C. A Limited Right to ObjectParticipants in the debate tend to classify limited conscienceclauses as either “broad” or “narrow.” Broad conscience clausesgrant a wide range of health care workers the right to refusealmost any kind of procedure or service. An example of abroad clause is the Mississippi law allowing health care workersto object to “any health care service.” Pro-choice groups areoften the first to decry such clauses as too broad.32 Narrowclauses try to limit either the class of objectors or applicableprocedures and services. The Church Amendment, whichgranted the right to refuse only in the context of abortion andsterilization, is an example of what many would consider anarrow clause. Pro-life groups are often the most outspokencritics of narrow conscience clauses.33

IV. The Dangers of Broad Conscience ClausesHere, I argue that lawmakers should adopt narrow conscienceclauses because broad clauses (1) violate patients’ right toinformed consent and (2) increase risks to vulnerablepopulations that seek medical care. I define “broad clause” tomean a conscience clause that allows any employee of a healthcare provider to refuse to participate in any nonemergencymedical procedure or service without fear of liability.Mississippi’s clause is broad in this sense.A. Informed ConsentThe principle of informed consent is central to the humanepractice of medicine. It states that (1) health care providersshould allow patients to participate in making choices abouttheir health care, and (2) patients must be fully informed inorder to do so. We can ground this principle in a patient’s legaland ethical right to direct what happens to her body. A numberof generally accepted requirements must be met for a patientto be considered fully informed. These requirements includea discussion of the nature of the procedure or treatment,alternatives to the proposed intervention, and the risks andbenefits associated with the options. The informing partyshould also assess how well the patient understands, and,finally, the patient should consent to whatever action is taken.

The most common way in which legislators havebroadened recent conscience clauses is to allow doctors andnurses—those who most regularly constitute the “informingparty”—to refuse even to discuss certain medical alternativeswith patients for whom those alternatives are medicallyrelevant and legal. Refusal to transfer or refer patients to otherwilling providers often accompanies the refusal to inform.Wisconsin Governor Jim Doyle vetoed Wisconsin’s proposedconscience clause last year precisely because it protected thesekinds of refusals. In vetoing the bill, Doyle stated, “Not onlycould a health care provider refuse treatment, there are norequirements that the health care professionals advise patientsof their treatment options, provide a referral to the patient,transfer certain patients, or render care if the patients’ healthor life is threatened.”34

The lack of any requirement to inform, refer, or transferpatients is especially unacceptable. The notion that thegovernment can legitimately curtail one’s rights when theyharm or infringe upon the rights of another is a fundamental

concept in American law. Conscience clauses that allow healthcare providers to refuse to inform, refer, or transfer patientsviolate that concept and allow the ideological commitmentsof doctors and nurses to dramatically affect a patient’sinformation on issues of life and death. Consider a scenario inwhich a woman experiencing severe abdominal pain isdetermined to be in the early stages of an ectopic pregnancy—a life-threatening implantation of the egg outside of theuterus—and, yet, is not counseled about the possibility ofsurgically removing the fertilized egg because her doctorbelieves that such a procedure amounts to murder. The tragedyis exacerbated when the doctor refuses, under protection ofthe law, to refer her to any other doctor who will fully informher about her options. The scenario is especially perilous whenit occurs in a rural area where patients do not have the luxuryof visiting other hospitals or doctors’ offices.35

Allowing doctors to refuse to provide or refer forreproductive counseling services keeps patients from fullyappreciating their medical options—and thus violates thenorms of informed consent. The American Medical Associationhas said the following about informed consent:

The patient’s right to self-decision can be effectivelyexercised only if the patient possesses enoughinformation to enable an intelligent choice. …Thephysician has an ethical obligation to help the patientmake choices from among the therapeuticalternatives consistent with good medical practice.36

Likewise, in 1982, the President’s Commission for the Study ofEthical Problems in Medicine and Biomedical and BehavioralResearch issued the following statement:

Since the judgment about which choice will best servewell-being properly belongs to the patient, a physicianis obliged to mention all alternative treatments,including those he does not provide or favor, so longas they are supported by respectable medicalopinion.37

The broad conscience clauses that legislators are passing todayallow medical professionals to flout the standards of good careexpressed in these statements.

Even safeguards designed to protect patients, such as thoseinstituted by Medicaid, are often inadequate. Medicaidpatients, including those in religiously sponsored managed careplans, have a right to receive federally mandated medicalservices and to have them paid for by Medicaid. Furthermore,a Medicaid managed plan must provide written notice to itsenrollees of its refusal to provide information and referral.However, neither of these facts guarantees that patients willbe able to make adequate judgments about their own care. Inthe course of receiving medical counsel and care, how doesthe patient know at what moment her provider is withholdinginformation so as not to offend the provider’s conscience?

Combining the right to refuse to inform with the right torefuse referral and transfer flies in the face of the patient’sright to have enough information to make an intelligent choice.In a pluralistic society, there is no justification for believingthat one group’s religious or moral scruples, no matter howsincere, are moral trumps to others’ basic right to makeinformed decisions about their own physical health.B. Risks to Vulnerable PopulationsIn discussing any health care policy, we should ask what itspractical effects will be for vulnerable or disadvantaged groups.Why should these groups receive special consideration inevaluating the effects of a policy? Vulnerable populations havehistorically had unequal access to health and economic


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resources, as well as social and political power. According tothe Center for Vulnerable Populations Research, “Vulnerablepopulations are often discriminated against, marginalized anddisenfranchised from mainstream society, contributing to theirlower social status and lack of power in personal, social, andpolitical relationships.”38 Vulnerable populations may be low-income families, women, children, racial and ethnic minorities,homosexuals, the elderly, or the homeless. Vulnerablepopulations are often unable to successfully integrate into themainstream health care delivery system. This results in highermortality rates, lower life expectancy, reduced access to care,and lower quality of life.

Broad conscience clauses are objectionable because theyincrease the risks that vulnerable populations face. Morespecifically, they increase the risk that vulnerable populationswill have reduced access to the full range of legal medicalservices or will face discrimination disguised as conscientiousobjection. The vulnerable populations who will likely facehigher risks because of broad conscience clauses are rapevictims, homosexuals, and rural patients, especially pregnantwomen who have low incomes or who live in underservedareas.

In early 2004, a Texas pharmacist, citing personal moralobjections, rejected a rape survivor ’s prescription foremergency contraception. The pharmacist and two other co-workers were later fired by Eckerd Corp. for violating thecompany’s policy that pharmacists cannot opt out of fillingprescriptions for religious or moral reasons. 39 A recent newsreport from New Hampshire told of a pharmacist who refusedto fill a prescription for emergency contraception, or to directthe patron, Suzanne Richards, to another pharmacist whowould do so. He scolded the twenty-one-year-old singlemother, who then “pulled over in the parking lot and startedcrying.” By the time Richards found another pharmacy to fillher prescription, the seventy-two hour period during whichwomen must take emergency contraception had passed.40

On its website, Pharmacists for Life International (PFLI)states, “It is not an inconvenience to refuse to refer such aclient since the pharmacist is doing the woman and her prebornchild a favor in terms of their physical and spiritual health.”41

Rape victims thwarted by such logic are vulnerable not onlyby virtue of the physical and emotional trauma they havesuffered as a result of the rape but also because takingemergency contraception is a time-sensitive matter: victimsmust obtain and fill a prescription within a narrow window ofefficacy.

Broad clauses in health care settings also extend the riskof discrimination against homosexuals to yet another aspectof life. If pharmacists can already refuse to fill or referprescriptions for emergency contraceptives and conventionalbirth control based on their beliefs about abortion orcontraception, there is nothing to stop them from objecting tofilling other kinds of prescriptions. The authors of a recentarticle on conscientious objection among pharmacists give thefollowing example:

A customer who fills prescriptions for zidovudine,didanosine, and indinavir is logically assumed to beinfected with the human immunodeficiency virus(HIV). If pharmacists can reject prescriptions thatconflict with their morals, someone who believes HIV-positive people must have engaged in immoralbehavior could refuse to fill those prescriptions.42

Since pharmacists do not have access to a customer’s medicalhistory, judgments about what prescription they can fill in goodconscience may be medically inappropriate and susceptible

to bias and prejudice. Some of the most recently proposedconscience clauses, such as Michigan’s, prohibit providers fromrefusing to participate in a service based on specific patientcharacteristics like race, ethnicity, or religion. Opponents ofthe Michigan legislation, however, have pointed out that thelist does not include sexual orientation and that “the legislationwould give providers license to refuse care to homosexuals.”43

People—and pregnant women in particular—who live inrural areas comprise a third group that broad conscience clausesput at risk. As of 1998, the federal government had deemedninety-one Catholic-run hospitals to be “sole providers” ofhealth care in federally designated underserved areas.44

Catholics for a Free Choice (CFFC) reports that the number ofCatholic sole providers rose sixty-five percent in just threeyears in the 1990s (from forty-six in 1994 to seventy-six in 1997).Some of these Catholic sole providers serve counties in whichCatholics make up less than one percent of the population.45

Catholic hospitals in the United States must follow thechurch’s Ethical and Religious Directives for Catholic HealthCare Services, established by the National Conference ofCatholic Bishops. An instance of ectopic, or extrauterine,pregnancy provides an example of how the interaction ofbroad conscience clauses with the Directives can put patientsin underserved areas at risk. Directive 48 states: “In the case ofextrauterine pregnancy, no intervention is morally licit whichconstitutes a direct abortion.”46 The Directives define abortionas “the directly intended termination of pregnancy beforeviability or the directly intended destruction of a viable fetus.”47

Doctors, however, may disagree on the question of viability.That disagreement combined with the right to refuse tocounsel, refer, or transfer puts the woman in a situation ofgrave danger if the Catholic hospital is a sole provider in thatarea. The risk heightens in the case of low-income patientswho lack the means to travel great distances to other providers.

While the impact of broad conscience protection onvulnerable populations is a question for further empirical study,it is inevitable that certain groups—be they rape victims,homosexuals, or rural patients—will bear the cost of freedomof conscience in medicine. This, in conjunction with the threatthat broad clauses pose to the norms of informed consent,underscores the need for more narrowly tailored conscienceclauses.V. A Proposal for a Narrow Conscience ClauseAn adequate conscience clause should address questions ofwho, when, and how. That is, it should answer questions aboutwhose conscience is protected, in what situations, and howinstitutions and facilities should accommodate theseobjections. My aim is to propose and defend a conscienceclause that answers these questions while balancing the rightsof both health care workers and patients. I recommend aclause that allows:

(1) Any person (2) directly involved in providing (3)nonemergency medical treatment or service (4) torefuse to provide the treatment or service in question,so long as the person (5) objects on moral or religiousgrounds and (6) cooperates in the transfer or referralof the patient to a willing provider.

While the term “conscience clause” usually refers to acomprehensive piece of legislation replete with definitionsand subsections, I use the term here to refer only to the abovestatement. Incorporating my proposed statement into an actualpiece of legislation would require work that goes beyondpresent purposes, such as specifying the damages to whichpersons are entitled when their rights of conscience areviolated. Instead, I wish only to show that the limitations in


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the above clause are defensible. I will consider the sixelements of the clause in turn.A. “Any person”One of the first tasks of a conscience clause is to identify thepersons it protects. Conscience clause drafters sometimesdistinguish between individuals and institutions and public orprivate persons. The most common term used to identify theprotected individual or institution is “person.”48 The Delawarestatute is an example of how “person” is used broadly:

No person shall be required to perform or participatein medical procedures which result in the terminationof pregnancy; and the refusal of any person to performor participate in these medical procedures shall notbe a basis for civil liability to any person, nor a basisfor any disciplinary or other recriminatory actionagainst him.49

Other statutes, like Iowa’s, protect only the “individual.”50

As others have noted, “individual” is more restrictive than“person” because corporations and other legal institutions are“persons,” for at least some purposes, but are never“individuals.”51

In 1993, Lynn Wardle found that about one-fifth ofconscience provisions excluded institutions from coverage.In these cases, the use of “person” or “individual” suggestedthat only individual human beings were protected.52 Thecommon term for institutions is “hospital,” but many clausesextend protection to other “health care facilities” or “medicalfacilities.”53

The term “person” in my proposed clause applies to bothindividual human beings and institutions. Extending protectionto individual human beings is uncontroversial, for we naturallythink of an individual as the possessor of a conscience. I will,therefore, focus on defending my inclusion of institutions.

The distinction between individuals and institutions in thecontext of conscience laws is invalid. Institutions orcorporations (including hospitals, medical associations, andother health care organizations) are legal entities “organizedby individuals to achieve purposes that can best be achievedby collective action, including protecting or promoting valuesthat individuals best can express and implement by collectiveactivity.”54 For the government to endow such an organizationwith legal personality, the organization must have a specificpurpose that the government sanctions. The law recognizessuch entities as legal “persons” and even gives them significantlegal benefits—such as tax exemptions—when they promotegoals that the state favors. Many of these government-sanctioned goals can be seen as moral. In the case of auniversity, the goal may be to educate the unlearned; the goalof a health care corporation or hospital may be to relievesuffering, cure the sick, or save lives. If lawmakers excludeinstitutions or corporations from protection, they deny theconscience of the individuals whose moral purposes theentities were created to advance.55

To deny legal protection for the conscience of healthcare institutions is also at odds with other legal doctrines thatprotect the rights of institutions. Wardle notes that protectingindividual conscience but not institutional conscience isanalogous to protecting the First Amendment right toindividual free speech but not the collective speech ofcorporations or cooperative groups. The Supreme Court,however, has repeatedly protected collective, corporatespeech.56

B. “Directly involved in providing”Many conscience clauses protect only persons engaged indirectly providing medical treatment or services (e.g., the

persons in the operating room or the place of delivery).57

Wardle contends that “[t]his confined conception of the classof persons whose rights of conscience merit protection isunjustifiable” because “one may feel morally culpable even ifone is not the immediate or direct provider of an immoralact.”58

I do not dispute that some persons may feel morallyculpable for acts in which they are only indirectly involved.These persons’ feelings, however, must be weighed againstthe patients’ rights. When conscience clauses extendprotection to all persons without regard to their degree ofinvolvement, the threat to informed consent, the risk tovulnerable populations, and the chance of discrimination allincrease greatly.

Take, for example, the case of an ambulance worker insuburban Chicago who recently sued a company that hadpurportedly fired her for refusing to transport a patient sufferingsevere abdominal pain to a clinic for an abortion.59 As a resultof the delay caused by the driver’s objection, the patient hadto be taken to an emergency room instead of the abortionclinic.60 Here, the objection of someone only indirectly involvedin the treatment put a patient’s life at risk. Later that samemonth, again in Illinois, a county settled a lawsuit brought byan employee allegedly denied a promotion because sherefused to translate into Spanish information for clients onabortion options.61 This example shows us what lies at thebottom of the slipper y slope when lawmakers extendprotection to persons only indirectly involved in the healthcare delivery process. Refusal to translate abortion-relatedinformation into Spanish is a double threat, for not only doesthe translator’s action interfere with the patients’ right to beinformed of their pertinent medical options, but it involvespatients who are vulnerable because of the language barrier.

Courts in two states have distinguished between directand indirect involvement. In Spellacy v. Tri-County Hospital,Pennsylvania courts held that a part-time admissions clerk whowas fired by a hospital because of her refusal to participate inadmitting abortion patients was not protected by the state’sconscience clause because her position was one of “ancillary”or “clerical” assistance.62 Likewise, in Erzinger v. Regents ofUniversity of California, the California Appellate court ruledthat the federal conscience clause protected only personsdirectly involved in performing abortions or sterilizations. Thecourt stated that “indirect or remote connections with abortionsor sterilizations are not within the terms of the statute.”63

Given that the threat to informed consent and vulnerablepopulations is more than hypothetical, a conscience clausemust draw a line on the issue of degree of involvement. Thespace between direct and indirect involvement is the onlynonarbitrary place to draw that line. The distinction betweendirect and indirect involvement is principled. It simultaneouslyprotects the right to informed consent, vulnerable populations,and the conscience rights of those providers who most likelybear the risk of moral culpability due to their direct involvementin controversial procedures.C. “Nonemergency medical treatment or service”The most common statutory exception in conscience clausesis for medical emergencies.64 Yet many clauses still fail toprovide exceptions explicitly for emergencies. Some thinkthis failure reflects the general belief that few persons willhave moral or religious objections to providing treatment inreal medical emergencies.65

For completeness, however, exceptions for emergenciesshould be included in conscience clauses. Even supporters ofbroad conscience clauses recognize that exceptions shouldbe built into conscience legislation “for life-threatening


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emergencies in which the controversial procedure providesthe best hope of saving a patient’s life.”66

EMTALA, as discussed earlier, also requires facilities to dowhatever is necessary to stabilize emergency room patients.The special duty of care required in medical emergencies andthe federal statutory requirement to provide services makeemergency exceptions essential features of conscienceclauses. As part of this exception, comprehensive conscienceclauses should state that emergency room employees are notimmune from liability for damages that result from their refusalto provide care. Furthermore, states should provide exceptionsto employment discrimination prohibitions in the hiring ofemergency room employees (thus allowing them to turn downapplicants who refuse to provide all emergency procedures).67

Even supporters of broad conscience clauses agree thatfacilities established for the primary purpose of providingspecific services may exclude from employment persons whorefuse to provide those same services if the persons’conscience rights cannot be reasonably accommodated. Twodifferent proposals for comprehensive conscience clauselegislation, one by law professor Lynn Wardle and the other bythe Protection of Conscience Project, protect employers whowish to hire people for specific tasks.68 For example, an abortionclinic could justifiably refuse to hire someone opposed toabortion if the position the clinic seeks to fill necessarilyinvolves performing abortions. This same logic should carryover to emergency rooms. Emergency rooms are establishedfor the primary purpose of treating patients with medicalemergencies. Therefore, an emergency room should be ableto ensure that all of its employees are willing to provide thefull range of services—including controversial ones—in a bonafide medical emergency.D. “To refuse to provide the treatment or service in question”My focus here is on the term “refuse” and the logistics of refusal.When and how should one raise an objection? First, the act ofrefusal should be expressed orally to the objector’s supervisorand to others, as determined by the supervisor, whose workwith either the patient or the objector might be impacted.69

Second, the statute should require the objector to state theobjection in writing.70 Stating the objection in writing servestwo functions. As a matter of documentation, the writtenobjection may protect the employer from liability when itallows an employee to refuse to provide a service. The writtenobjection also preserves the evidence of conscientiousobjection in cases where the employee might have had reasonsto refuse other than moral or religious objection (such as whenthe employee personally dislikes the patient or does not wantto stay late to provide the service).

In addition to stating the objection, individuals should berequired to object in a timely manner, preferably as soon asthey are asked or assigned to participate in the treatment orservice. Since most people know what they object to beforebeing asked, new employees should make known theirobjections when hired. This requirement makesaccommodating the objection easier for the facility. Theserequirements for stating the objection also pertain toinstitutions. The law should require institutions to post noticeand inform patients of their refusal policy and to giveimmediate notice to the patient when an objection is going toaffect the patient’s care noticeably.71

E. “Objects on moral or religious grounds”Most conscientious objectors base their objection on religiousbeliefs, but there is no reason why the law should favorreligiously based objections over those based on sincerely held,nonreligious moral or ethical convictions. There is legalprecedent for nonreligious objections in cases dealing with

conscientious objection in the military. Although the militarypolicy defines a conscientious objector as one who objects towar “by reason of religious training and belief,” the policy laterdefines this as

Belief in an external power or being or deeply heldmoral or ethical belief, to which all else is subordinateor upon which all else is ultimately dependent, andwhich has the power or force to affect moral well-being.72

Moreover, the Supreme Court has, on various occasions,declared that, in the eyes of the law, “religious training andbelief ” need not have anything to do with attending church,believing in God, or following the teachings of a particularreligion.73

In one case, conscientious objector Elliot Welsh repeatedlytold the draft board that his belief was not “religious.” Yet inWelsh v. United States (1970), the Supreme Court said thatWelsh qualified for conscientious objector status because eventhough he did not think his belief was religious, the law did.The court held that a moral objector qualified for exemptionas long as his belief was central to his life.

Protecting only those whose beliefs are “religious” in theusual sense of the word would also likely violate theestablishment clause of the First Amendment. If challenged,a conscience clause of this sort would fail the various “tests”the Supreme Court has applied in recent years to legislationinvolving religion. These include the Lemon test, part of whichasks whether the challenged legislation has the primary effectof advancing or inhibiting religion, and the “endorsement” test,which asks if the state action unconstitutionally endorsesreligion by “conveying or attempting to convey a message thatreligion or a particular religious belief is favored or preferred.”74

A conscience clause that granted religious reasons special statusover other sincerely-held ethical or moral convictions wouldbe ripe for challenge in the courts since it creates a perceptionin the mind of a reasonable observer that the government isendorsing religion over nonreligion.75

One may object that it is too difficult to determine thevalidity of an objection based solely on moral or ethical beliefs,whereas religious objections can be verified by checking themagainst the public teachings of a particular church. While I donot underestimate the difficulty of determining which personsand what kinds of objections will have valid claims forprotection, that determination is not one I need to make toprove my larger point. 76 My point is simply that there is noreason for favoring religious to nonreligious objections. Thecourts have already undertaken some of the work of creatingenforceable definitions of “moral” and “religious,” and thesedeterminations are open to further refinement through thelaw.F. “Cooperates in the transfer or referral of the patient to awilling provider”In section IV, I argued that allowing health care professionals torefuse to transfer or refer a patient to a willing provider violatedthe patient’s right to informed consent and increased risk tovulnerable populations. The same argument applies here.Lawmakers must realize that the rights of conscience cannotbe exercised in isolation in the context of health care.Conscientious objection affects patients, whose interests andrights the law also protects. The nature of a health care worker’sjob necessitates compromise between the rights of providersand patients. The requirement to cooperate in transfer andreferral is crucial to protecting the well being of patients andensuring the continuity of care.


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Two professional associations have already moved in thisdirection. In 1998, California’s pharmacist association addedto its conscience policy a “Duty to Care” policy that recognizedthe responsibility to refer.77

The American Pharmaceutical Association has alsoadopted a policy that supports “the establishment of systemsto ensure patient access to legally prescribed therapy withoutcompromising the pharmacist’s right of conscientiousrefusal.”78

Health care workers can cooperate in transfers andreferrals in several ways. Hospitals and pharmacies can displayin plain sight the contact information of other facilities thatoffer the services to which they object. A pharmacist, forexample, can cooperate by displaying this information in anoticeable location, or by providing customers with theinformation when the pharmacist exercises a conscientiousobjection. Pharmacies could also provide patients with a toll-free phone number—such as 1-888-not2late—that gives callersthe names and numbers of pharmacies in their area willing tofill prescriptions for emergency contraception.

The goal of the transfer and referral requirement can beachieved through simple means. Narrow conscience clausesneed not require objecting doctors to take patients by thehand to the nearest abortion clinic but only to take some easysteps toward helping patients gain access to information. Onemay object that this information is easily available to anymember of the public who will invest the time to do research.This objection, however, wrongly assumes that all patients haveequal access to the resources needed to conduct the research,such as Internet access, a phone, or a vehicle. Requiringmedical workers and facilities to provide the information orrefer the patient to a willing provider is a safety measure forpatients without access to information-gathering resources,most of whom likely belong to vulnerable populations.

Reasonable compromises on the issue of providinginformation are also possible. The Sexual Assault SurvivorsEmergency Treatment Act, enacted by the Illinois statelegislature in 2001, represents such a compromise.79 This law,which requires emergency rooms to inform rape survivorsabout emergency contraception but does not require them tofurnish it on-site, has been praised by one observer as a“creative approach …to deal with the conflicting needs of rapevictims and religious hospitals.”80 The Act gives each hospitalthe freedom to develop its own protocol for providinginformation. The Illinois Catholic Hospital Association (IHCA)did not oppose the bill and was able to collaborate with itsmember institutions to devise a uniform protocol that satisfiedthe requirements of both the statute and Catholic doctrine.81

ConclusionBecause of the American commitment to individual rights andthe fact that “religious and moral freedom is consideredsacrosanct,”82 the support for conscience clauses will not onlycontinue in the United States but will lead the debate intoincreasingly contentious territory as technology advances. Asthe battle ensues, lawmakers should remember that the healthcare professions by definition involve more than just theproviders of care, and, thus, they should consider the rights ofall parties.

The clause I have proposed is broad enough to protectthe conscience rights of those providers for whom the risk ofmoral culpability is highest (i.e., direct providers of morallycontroversial, nonemergency services). It is also narrow enoughto guard against violations of the right to informed consent,the rights of vulnerable populations, and the likelihood ofblatant discrimination in the delivery of health care.

Endnotes1. See, e.g., The Selective Service Act, Statutes at Large

54, 5(g), 889 (1940), and, more recently, The MilitarySelective Service Act, U.S. Code, App. 451 et seq., sec.456, 26 (2003); United States v. Seeger, 380 U.S. 163(1965); Welsh v. United States, 398 U.S. 333 (1970).

2. Some critics call them “refusal clauses.” See EmilyAlpert. “Refuting the Health Care ‘Refusal Clause’,”Chicago Maroon, October 27, 2004; Adam Sonfield.“New Refusal Clauses Shatter Balance betweenProvider ‘Conscience’, Patient Needs,” TheGuttmacher Report on Public Policy, 7 (2004).

3. Mississippi Health Care Rights of Conscience Act,Senate Bill 2619, sec. 2 (2004) (emphasis mine).

4. The six procedures were: abortion, sterilization,embryo research, fetal tissue transplants, withholdingof nutrition/hydration, and euthanasia. See 2003Wisconsin Assembly Bill 67 (February 18, 2003).Wisconsin Governor Jim Doyle vetoed the bill on April21, 2004. See <http://www.wisgov.state.wi.us/docs/042104_Veto_AB67.pdf>.

5. Church Amendment to the Public Health ServiceExtension Act of 1973, 42 U.S. Code § 300a-7.

6. See Emily Bass. “Unconscionable Care: Is the ReligiousRight Compromising Your Healthcare?” Ms. Magazine,(June/July 2001).

7. Ibid.8. See Angela Bonavoglia. “Co-opting Conscience: The

Dangerous Evolution of Conscience Clauses inAmerican Health Policy,” ProChoice Matters, (January1999), 1.

9. See Rachel Benson Gold. “Conscience Makes aComeback in the Age of Managed Care,” TheGuttmacher Report on Public Policy, 1 (February 1998),1.

10. See Rachel Benson Gold. “Special Analysis...Provider‘Conscience’ Questions Re-emerge in Wake ofManaged Care’s Explosion,” State Reproductive HealthMonitor, The Alan Guttmacher Institute, (June 1997),3.

11. Ibid., 5. Also see Bonavoglia, supra note 3.12. Ibid.13. Gold, “Conscience Makes a Comeback,” 1.14. Ibid.15. Ibid.16. Consolidated Appropriations Act, 2005, H.R. 4818, Title

V, Sec. 508(d)(1), (2).17. See <http://www.consciencelaws.org/Protection-of-

Conscience-Laws.html>.18. The Conscience Project’s coverage of Australian laws

is available at <http://www.consciencelaws.org/Conscience-Laws /Australia-Conscience-Laws /Conscience-Laws-Australia.html>. See MedicalPractitioners Act of 1930, 55E (Australian CapitalTerritory), Criminal Code of the Northern Territory ofAustralia, § 174 (Northern Territory), Criminal LawConsolidation Act of 1935, § 82A (South Australia),Criminal Code Act of 1924 (Tasmania), and InfertilityTreatment Act of 1995, § 152 (Victoria).

19. See Contraception, Sterilisation, and Abortion Act of1977, §42 (New Zealand); The Health (FamilyPlanning) Act of 1979, Clause 11 (Ireland) andRegulation of Information (Services outside the State


— 33 —

for Termination of Pregnancies) Act of 1995, Clause13 (Ireland).

20. See <http://www.consciencelaws.org/Proposed-Conscience-Laws/Canada/PLCanada01.html>.

21. Ken Baum and Julie Cantor, “The Limits ofConscientious Objection—May Pharmacists Refuseto Fill Prescriptions for Emergency Contraception?”New Engl J Med, 351 (2004): 2012; United States v.Macintosh, 283 U.S. 605, 634 (1931) (Hughes, C.J.,dissenting).

22. Ibid., 2009 (emphasis mine).23. Stephen Wear, Susan LaGaipa, and Gerald Logue.

“Toleration of Moral Diversity and the ConscientiousRefusal by Physicians to Withdraw Life-SustainingTreatment,” Journal of Medicine and Philosophy, 19(1994): 147-59.

24. Lynn D. Wardle. “Protecting the Rights of Conscienceof Health Care Providers,” The Journal of LegalMedicine, 14 (1993): 189, note 55.

25. Ibid., 214.26. Baum and Cantor, supra note 21, 2008-09. For a critique

of the “technician model,” see J.F. Childress and M.Siegler. “Metaphors and Models of Doctor-PatientRelationships: Their Implications for Autonomy,”Theoretical Medicine, 5 (1984): 17-30.

27. For a defense of medicine as a moral enterprise, seeEdmund D. Pellegrino and David C. Thomasma, TheVirtues in Medical Practice (New York: OxfordUniversity Press, 1993), chapter 3; Mark R. Wicclair,“Conscientious Objection in Medicine,” Bioethics, 14(2000): 213-17.

28. See Baum and Cantor, supra note 21, 2010.29. See, e.g., Watkins v. Mercy Medical Center, 364 F. Supp.

799 (D. Idaho 1973, aff’d, 520 F.2d 894 (9th Cir. 1975);Swanson v. St. John’s Lutheran Hospital, 597 P.2d 702(Mont. 1979); Kenny v. Ambulatory Centre of MiamiFlorida, Inc., 400 So. 2d 1262 (Fla. App. 1981).

30. See Alison Manolovici Cody. “Success in New Jersey:Using Charitable Trust Doctrine to Preserve Women’sReproductive Services When Hospitals BecomeCatholic,” NYU Annual Survey of American Law, 57(2000): 327. For more on how eliminating the rights ofconscience would affect the Catholic system, seeHeather Skeeles. “Patient Autonomy Versus ReligiousFreedom,” Washington & Lee Law Review, 60 (2003):1012, note 16.

31. Emergency Medical Treatment and Labor Act, U.S.Code 42 § 1395dd (b)(1) (1986).

32. See, e.g., “Toward a New Health Care System,”Summary of an ACLU Public Policy Report. Availableonline at <http://www.skepticfiles.org/aclu/health_s.htm>.

33. See, e.g., the New Jersey Catholic Conference’s“Example Letter to All New Jersey AssemblyMembers.” Available online at <http://www.njcathconf.com/LegActionAlerts/Life%20Issues/A292ExemplarAssembly.htm>.

34. Jim Doyle, Veto Statement of Wisconsin’s AssemblyBill 67, April 21, 2004. Available online at <http://www.wisgov.state.wi.us/docs/042104_Veto_AB67.pdf>.

35. A comparable situation occurred in Manchester, NewHampshire, to a pregnant woman named KathleenHutchins. See the transcript of the CBS News

Broadcast of 60 Minutes from December 10, 2000.Available online at <http://www.catholicsforchoice.org/new/inthenews/12100060Minutes.htm>.

36. Principles of Medical Ethics of the American MedicalAssociation (1996-1997 Edition) (emphasis mine).

37. President’s Commission for the Study of EthicalProblems in Medicine and Biomedical and BehavioralResearch (1982) (emphasis added).

38. Center for Vulnerable Populations Research, “Whoare Vulnerable Populations?” Available online at<http://www.nursing .ucla.edu/organizations/cvpr/who-are-vulnerable.html>.

39. See “Pharmacist Refuses Pill for Victim,” ChicagoTribune, (February 11, 2004): C7; “Pharmacist Firedfor Denying ‘Morning After’ Pill.” Available at <http:// w w w. c n n . c o m / 2 0 0 4 / U S / S o u t h w e s t / 0 2 / 1 2 /pharmacy.firing.ap/>.

40. See Rob Stein. “Pharmacists’ Rights at Front of NewDebate,” Washington Post, (March 28, 2005), A01.Available online at <http://www.washingtonpost.com/wp-dyn/articles/A5490-2005Mar27.html>.

41. Pharmacists for Life International. Available online at<http://www.pfli.org/main.php?pfli=conscienceclausefaq>.

42. Baum and Cantor, supra note 21, 2008.43. Sonfield, 3.44. See “Trends in Brief.” Available online at <http://

www.catholicsforchoice.org/pubs/merger99.asp>.45. See Liz Bucar. “When Catholic and Non-Catholic

Hospitals Merge—Reproductive HealthCompromised,” (Catholics for a Free Choice, 1998),3, 15.

46. Directive 48. Available online at <http://www.usccb.org/bishops/directives.htm>.

47. Ibid., Directive 45.48. See, e.g., Alaska Stat. § 18.16.010 (b) (1991); Ark. Code

Ann. § 20-16-601 (2001); 24 Del. Code Ann. § 1791 (1987);Fla. Stat.§ 390.0111 (2001); Ga. Code Ann. § 16-12-142(2001); Haw. Rev. Stat. § 453-16 (1985); Kan. Stat.Ann. § 65-443, 444 (2001). Other states using the term“person” in their conscience clause legislation areMaine, Maryland, Minnesota, Montana, Nebraska,New Jersey, New York, North Dakota, Ohio,Oklahoma, South Dakota, Tennessee, Virginia, WestVirginia, and Wyoming.

49. 24 Del. Code Ann. § 1791 (1987) (emphasis mine).50. Iowa Code Ann. § 146.1; also see 42 U.S. Code, § 300a-

7(a).51. See Wardle, supra note 24, 182. For purposes of

holding property, entering into contracts, and suing incourt (or being sued), corporations are “legalpersons.”

52. See, e.g., Mass. Gen. Laws Ann. ch. 112, § 12I (“Aphysician or any other person who is a member of orassociated with the medical staff”); R.I. Gen. Laws §23-17-11. Other states that used “person” or“individual” in this way were Indiana, Iowa, Oregon,Kansas, and Maryland.

53. See, e.g., 22 Me. Rev. Stat. Ann. § 1591-2; Pa. Cons.Stat. Ann. § 3213 (d).

54. Wardle, supra note 24, 185.55. Ibid., 186. Also see Pembina Consol. Silver Mining &

Milling Co. v. Pennsylvania, 125 U.S. 181, 189 (1888)


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(“[C]orporations are merely associations ofindividuals united for a special purpose, and permittedto do business under a particular name, and have asuccession of members without dissolution.”).

56. Ibid., 187. Also see First Nat’l Bank of Boston v.Bellotti, 435 U.S. 765, 778-84 (1978); N.A.A.C.P. v. Button,371 U.S. 415, 428-31 (1963); Pacific Gas and Elec. Co.v. Public Utilities Comm’n of California, 475 U.S. 1, 9-12 (1986); Federal Election Comm’n v. MassachusettsCitizens for Life, Inc., 479 U.S. 238, 260-62 (1986).

57. An example is a Nevada clause that protects “aregistered nurse, a licensed practical nurse, a nursingassistant or any other persons employed to furnishdirect personal health services to a patient” againsthaving “to participate directly in the induction orperformance of an abortion.” See Nev. Rev. Stat. §632.475.

58. Wardle, supra note 24, 188.59. See “ACLJ Files Lawsuit Against Illinois Ambulance

Service,” News Release by The Protection ofConscience Project, (May 7, 2004). Available online at<http://www.consciencelaws.org/Repression-Conscience/Conscience-Repression-34.htm>.

60. See “Fired EMT Sues After Refusing to TransportWoman for Abortion,” News Release by FreeRepublic. Available online at <http://freerepublic.com/focus/f-news/1134472/posts>.

61. See “Discrimination case against health departmentsettled,” Daily Chronicle, May 28, 2004.

62. 18 Empl. Prac. Dec. (CCH) ¶ 8871 (Pa. C. P. De. Cty.),aff ’d, 395 A.2d 998 (Pa. 1978).

63. 137 Cal. App. 3d 389, 394, 187 Cal. Rptr. 164, 168 (1982).64. See, e.g., Cal. Health & Safety Code § 25955(d); Ill.

Ann. Stat. ch. 111½, ¶ 5306, 5309; Iowa Code Ann. §146.1; Kan. Stat. Ann. § 65-444; Md. Health—Gen.CodeAnn. § 20-214 (Supp. 1991); Nev. Rev. Stat. § 632-475.

65. E.g., Wardle, supra note 24, 194.66. Ibid., 195.67. Two states, Kentucky and Pennsylvania, already have

such exceptions. See Ky. Rev. Stat. § 311.800 and Pa.Cons. Stat. Ann. § 3213.

68. See Wardle, “Health Care Providers’ Rights ofConscience Protection Act” in the appendix to“Protecting the Rights of Conscience of Health CareProviders,” 229, Sec. 6(c); also see The Projection ofConscience Project’s draft legislation, “The Protectionof Conscience Act,” 8, note 15. Available online at<http://www.consciencelaws.org/ Conscience-A r c h i v e / C o n s c i e n c e - Pr o j e c t - D o c u m e n t s /Model%20Statute.pdf>.

69. A number of states require that the objector “state”the objection. See, e.g., Fla. Stat. Ann. § 390.001(8);Mich. Comp. Laws Ann. §§ 333.20182 to 333.20183;N.C. Gen. Stat. § 14-45.1.

70. See, e.g., Ariz. Rev. Stat. Ann. § 36-2151; Cal. Health &Safety Code § 25955; Colo. Rev. Stat. § 18-6-104.

71. See Wardle, supra note 24, 199.72. Department of Defense Directive 1300.6,

Conscientious Objectors (20 August 1971), § III(a), §III(B).

73. See Clay v. United States, 403 U.S. 698 (1971); Welsh v.United States, 398 U.S. 163 (1970); United States v.Seeger, 380 U.S. 163 (1965).

74. See Lemon v. Kurtzman, 403 U.S. 602 (1971); AlleghenyCounty v. ACLU, 492 U.S. 573 (1989); Wallace v. Jaffree,472 U.S. 38 (1985).

75. See Lynch v. Donnelly, 465 U.S. 668 (1984).76. In Swanson v. St. John’s Lutheran Hospital, 597 P.2d

702 (Mont. 1979), two Montana Supreme Courtjustices dissented because they believed a nurse’sreasons for refusing to participate in sterilizations weremore emotional than moral.

77. See Bonavoglia, supra note 8, 4.78. From the American Pharmaceutical Association

Report of the House of Delegates, policies adopted bythe 1998 APhA House of Delegates.

79. See 410 Ill. Comp. Stat. 70/2.2 (2002).80. Skeeles, 1018.81. Ibid., 1019, notes 57 and 58.82. Baum and Cantor, supra note 21, 2009.

RECENT ARTICLES OF INTEREST

—ABSTRACTS—

Scott C. Idleman,“The Concealment of ReligiousValues in Judicial Decisionmaking,” 91 VirginiaLaw Review 515-534 (2005).

“There was a time in the United States when the explicitinvocation of religious values…in judicial decisionmaking wasgenerally tolerated….” That is not so today, but “an importantcontemporary issue is whether the attempted exclusion oromission of religion from the judicial process…is ultimately aspractical, as principled, as benign, or as authentic as commonlyassumed.” The author is concerned not with the public actionsand pronouncements on religion, such as those by JusticeAntonin Scalia and Alabama’s former Chief Justice Roy Moore,but with the actual influence of religion in judicial decision-making. But though religious considerations are usually notevident in judicial decisions, it is likely that they are influential—but concealed (though usually without an intent to deceive).

While the overt avoidance of religious influence hasbenefits, there are nevertheless costs of concealment: it maydeprive litigants of the opportunity to make effectivearguments, it may raise questions of a judge’s integrity (evenreligious citizens may have such concerns), and it may make ajudicial decision less explicable or predictable. The authorsuggests that judges need to be more reflective about “thepossible relationship between religious inputs and theirdecisionmaking” and that the role of religion in judges’decisional processes should be destigmatized. What is neededis “critical but open-minded assessment” in which the issue isnot “why a judge has employed religion in her reasoning, as ifit were an extraordinary or bizarre aberration, but insteadwhether her particular use of religion is reasonable orpermissible under the circumstances.”


— 35 —

Lior Jacob Strahilevitz, “The Right to Destroy,”114 Yale Law Journal 781-854 (2005).

The right to destroy one’s property has frequently beenregarded as one of the incidents of ownership—people maydestroy, on the one hand, unwanted personal items, and onthe other, frozen human embryos. In our burial practices, wemay bury people wearing wedding rings and other jewelry,thus effectively destroying them, and also with their valuable,usable organs, again destroying them. On the other hand, “incontested cases, courts have become increasingly hostile toowners’ efforts to destroy their own valuable property,” andfurther limits on the right to destroy have been proposed. Theauthor defends the right to destroy one’s property in many(though not all) of the cases, particularly in the testamentarycontext, in which courts have tended the other way.

The main concern of courts that have restricted the rightto destroy is the waste of valuable resources; a related concernis the negative externalities that might be associated withdestruction. For example, there is a case in which a testatordirected that her house be razed and the land sold. Neighborssought injunctive relief, which the court granted on the groundthat there were no good reasons that would offset the wasteof resources and damage to third parties. On the other hand,the author maintains, when it comes to burial practices, bothlaw and social norms “encourage the destruction of especiallyvaluable societal resources.” Other cases of propertydestruction identified by the author include the suppressionof a patent for a superior product (when there was thought tobe more profit in the inferior product), a waste of resourcesupheld by the courts; the federal law, passed in the wake ofWatergate, abolishing private ownership of presidential papers(thus limiting the right to destroy); and historic preservationstatutes (limiting the right to destroy).

There are also cases in which destruction of property isjustified on expressive grounds, including First Amendmentcases such as flag burning and the pulling down of the statueof Saddam Hussein. On the other hand, the Visual Artists RightsAct prohibits the destruction of certain visual art, even by apurchaser, during the artist’s lifetime, presumably because ofexpressive concerns, the artist’s taking precedence over theowner’s.

The author argues that a right to destroy should berecognized in many of the cases in which it has been withheld.Certainly where there are strong social norms, as with organs,such a right is appropriate. In many cases of waste, the authorargues that there are frequently “ex ante” arguments showingthat there is greater waste overall in prohibiting the right todestroy. With regard to the testamentary right to destroy, theauthor proposes a response to a number of concerns aboutsuch a right—to ensure that the owner knows the value ofwhat he wants destroyed and of objections that he would nothave to hear when he is dead, the author proposes that“destructive instructions contained in wills shall be honoredonly if the owner, during his lifetime, notified the public of theopportunity to purchase a future interest in the property.” For,the author says, if no bid met his price, “the owner would havedemonstrated that he valued destruction of the property morethan anyone else valued its preservation.”

Gerald Dworkin, “Moral Paternalism,” 24 Lawand Philosophy 305-319 (2005).

The author’s main purpose in this article is to determine howso-called moral paternalism (the idea of preventing a personfrom harming himself or herself morally) differs from legalpaternalism (preventing a person from harming himselfphysically or psychologically), and from legal moralism(preventing a person from doing something inherentlyimmoral). For whereas legal moralism holds that a personmay be morally better if his or her behavior is altered, moralpaternalism holds that such a change is better for the person.That is, such a person will not only be morally better but betteroff in the sense of having increased well being.

There is a question, though, of whether an interventionthat improves one’s character makes his life better if he doesnot believe that it does (this is the endorsement thesis: thatone must endorse the value that is created in order for it tomake his lived life better). For it has been argued (by RonaldDworkin and Joel Feinberg) that moral paternalism is incorrectprecisely because without endorsement a person’s life cannotbe better for her. The author maintains, though, that this viewhas not been demonstrated, and further, that even if a persondoes not endorse ways in which he is forced to change, so thathe does not benefit directly from the change, the change “mayhave consequences for other aspects of the person’s life thathe does endorse.” Thus, moral paternalism may succeed inmaking the person not only morally better but also better off.

Judith Resnik, “Jurocracy and Distrust:Reconsidering the Federal JudicialAppointments Process: Judicial Selection andDemocratic Theory: Demand, Supply, and LifeTenure,” 26 Cardozo Law Review 579-655 (2005).

Issues surrounding the appointment and role of Supreme Courtjustices in the United States have raised questions about therole of judges in a democracy. Coupling lifetime appointmentswith judicial supremacy gives rise to what is called the counter-majoritarian difficulty. Though the author shares some of theconcerns, much of her article is devoted to documenting thevariety of practices related to the appointment, the terms, andthe role of judges in the United States and in otherdemocracies. A major contention of the article is thatdemocratic theory can be comfortable with a number of waysof dealing with judges. What democracy requires, she argues,is a commitment to judicial independence and to “constrainedand diffused power,” which, the author believes, can beachieved in many ways, some of which are already the practicein the United States and some of which are not.

The author notes that in response to the growing demandfor federal judges in the twentieth century the number of life-tenured, Article III judgeships has increased dramatically (eight-fold), yet these constitute only a quarter of federal judges, themajority of which are what the author calls “statutory” judgesand include magistrate and bankruptcy judges, who areappointed by the constitutional judges (a process that carrieswith it its own issues about democratic input) and who do nothave life appointments. Beyond that are the “Article I” courts,including the more than 2,000 administrative law judges in theadministrative agencies. Thus, within a democratic framework,there are many patterns of judgeships, all thought to be


— 36 —

constitutional, with the most well known and contentiousbeing a very limited category.

On the other hand, the top-tier Article III judges haveengendered deep political questions. The author is notopposed to the appointment of these judges being a politicalprocess but thinks that these judgeships have become morepolitical then they need to be and that there are mechanismsof control that are compatible with democratic ideas. Notonly do top-tier Article III judges serve for growing lengths oftime, but the Supreme Court’s ability to set its own agenda hasmade that court more political, since it does not respond, asmost courts do, to whatever cases come along, but can decidewhat areas of law to develop, a tendency that is enhanced bythe Court’s agreeing to hear a declining number of cases eachyear.

There are several ways of diminishing the political role ofjudges that, the author maintains, are compatible withdemocracy; many of these are used in other democracies.One is to have a supermajority rule for Senate confirmation (infact, despite some noteworthy conflicts, more than ninetypercent of judges nominated in recent years have beenconfirmed by ninety or more senators). Other possibilities forjudicial appointment are merit selection (though this mightdiminish democratic influence too much); substantial increasein the number of life-tenured judges, which would diminishthe political influence of the few; and fixed terms of office(there would probably be constitutional issues with this, butthe author thinks it might be compatible with Constitutionalprescriptions), or at least legislation creating incentives forjudges to serve shorter terms.

The author notes, finally, that despite devices in the UnitedStates that are designed to ensure an independent and impartialjudiciary, there have been many complaints in recent yearsabout the power of judges and proposals to curb their powers.

Benjamin C. Zipursky, “Theories of Taking theConstitution Seriously Outside the Courts:Tempering Supremacy,” 73 Fordham LawReview. 1463-1476 (2005).

The author takes issue with some of the arguments of LarryKramer’s book The People Themselves, in which Kramer arguesthat the ultimate power of interpreting the Constitution is theprovince of the people, who have ceded it to the SupremeCourt in recent years and need to reclaim it. First of all, if theConstitution is the repository of fundamental law whosemeaning is what those who ratified it meant or understood orintended when they ratified it, then what is the case for sayingthat people living today have special insight into what an earliergeneration ratified (and, further, how do we even know whatcounts as an expression of such a view?)? A related pointconcerns “how the people could express their interpretiveviews,” for if it is though some other branch of government, inparticular an elected branch, then it is not the peoplethemselves interpreting the Constitution but a conflictbetween branches. Indeed, it is wholly unclear what is tocount as the people themselves or their views.

The author argues that there is a convincing argument,along the lines of the Marbury argument, for judicial supremacy“in at least some areas of constitutional interpretation.” ArticleI powers such as the commerce clause confer powers (in Hart’ssense) on government; without those powers it cannot passlaws. So when a cases arises in which the government’s powerto make a law is questioned, the court must decide whether

there is a valid law, and if it is to make a final decision in thecase, as the Constitution contemplates, its decision must beauthoritative. This line of thought, however, does not extendto all constitutional provisions, for some (such as in the Bill ofRights) may only impose duties on government but not conferpowers. If, for example, the Fourth Amendment is interpretedas imposing duties on Congress but not as limiting its lawmakingpower, then the foregoing argument would not imply judicialsupremacy. Of course, some provisions of the Bill of Rightsmight be both duty-imposing and power-constraining.

Finally, the author believes that even though there is norequirement that courts defer to the legislative branch incertain cases, the courts might appropriately decide to abideby a norm of deference, such as in many New Deal eradecisions on Article I powers. From this standpoint, somerecent decisions (Lopez and Morrison) do not reflect amisconception of the proper scope of judicial authority but, atmost, poor judgment.

RECENT BOOKS OF INTEREST

Barnes, Jeb. Overruled?: Legislative Overrides, Pluralism, andContemporary Court-Congress Relations. Stanford, CA:Stanford University Press, 2004.Bogira, Steve. Courtroom 302: A Year Behind the Scenes in anAmerican Criminal Courthouse. New York, NY: Knopf, 2005.Brooks, Thom (ed.). Rousseau and Law. Burlington, VT:Ashgate Publishing, 2005.Byrd, Sharon and Hruschka, Joachim (eds.). Kant and Law.Burlington, VT: Ashgate Publishing, 2005.Campbell, Tom. Rights: A Critical Introduction. New York, NY:Routledge, 2005.Dagan, Hanoch. The Law and Ethics of Restitution. CambridgeUniversity Press, 2004.Fried, Charles. Saying What the Law Is: The Constitution inthe Supreme Court. Cambridge, MA: Harvard University Press,2004.Frost, Michael H. Introduction to Classical Legal Rhetoric: ALost Heritage. Burlington, VT: Ashgate Publishing, 2005.Golash, Deirdre. The Case Against Punishment: Retribution,Crime Prevention, and the Law. New York, NY: NYU Press,2004.Hirschl, Ran. Towards Juristocracy: The Origins andConsequences of the New Constitutionalism. Cambridge, MA:Harvard University Press, 2004.Kendall, Douglas T. (ed.). Redefining Federalism. Washington,DC: Environmental Law Institute, 2004.MacKinnon, Catharine A. Women’s Lives, Men’s Laws.Cambridge, MA: The Belknap Press of Harvard University Press,2005.Parisi, Frencesco and Smith, Vernon L. (eds.). The Law andEconomics of Irrational Behavior. Stanford, CA: StanfordUniversity Press, 2005.Patterson, Dennis (ed.). Wittgenstein and Law. Burlington,VT: Ashgate Publishing, 2004.Richardson, Janice. Selves, Persons, Individuals: PhilosophicalPerspectives on Women and Legal Obligations. Burlington,VT: Ashgate Publishing, 2004.


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Sarat, Austin (ed.). Law in the Liberal Arts. Ithaca, NY: CornellUniversity Press, 2004.Shavell, Steven. Foundations of Economic Analysis of Law.Cambridge, MA: Harvard University Press, 2004.Tushnet, Mark (ed.). The Constitution in Wartime. Durham,NC & London: Duke University Press, 2005.

NEWSLETTER ON PHILOSOPHY AND LAW · 2018. 4. 1. · Theodore Benditt, Editor Fall 2005 Volume 05, Number 1 APA NEWSLETTER ON Philosophy and Law FROM THE EDITOR Theodore Benditt University

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